Medical Malpractice Claims by Members of The Uniformed Services

32194 Federal Register / Vol. 86, No.
115 / Thursday, June 17, 2021 / Rules and Regulations
Burn’’ is used to refer to multiple areas Subpart C—Approved American Signed: January 4, 2021.
in the United States. Therefore, wine Viticultural Areas Mary G. Ryan,
bottlers using ‘‘The Burn,’’ standing Administrator.
alone, in a brand name or in another ■ 2. Subpart C is amended by adding Approved: January 5, 2021.
label reference on their wines will not § 9.276 to read as follows: Timothy E. Skud,
be affected by the establishment of this Deputy Assistant Secretary (Tax, Trade, and
AVA. § 9.276 The Burn of Columbia Valley. Tariff Policy).
The establishment of The Burn of (a) Name. The name of the viticultural [FR Doc. 2021–12771 Filed 6–16–21; 8:45 am]
Columbia Valley AVA will not affect the area described in this section is ‘‘The BILLING CODE 4810–31–P
existing Columbia Valley AVA, and any Burn of Columbia Valley’’. For purposes
bottlers using ‘‘Columbia Valley’’ as an of part 4 of this chapter, ‘‘The Burn of
appellation of origin or in a brand name Columbia Valley’’ is a term of DEPARTMENT OF DEFENSE
for wines made from grapes grown viticultural significance.
within the Columbia Valley will not be Office of the Secretary
affected by the establishment of this (b) Approved maps. The four United
new AVA. The establishment of The States Geological Survey (USGS)
32 CFR Part 45
Burn of Columbia Valley AVA will 1:24,000 scale topographic maps used to
determine the boundary of The Burn of [Docket ID: DOD–2021–OS–0047]
allow vintners to use ‘‘The Burn of
Columbia Valley’’ and ‘‘Columbia Columbia Valley viticultural area are RIN 0790–AL22
Valley’’ as appellations of origin for titled:
wines made primarily from grapes (1) Sundale NW, OR–WA, 2017; Medical Malpractice Claims by
grown within The Burn of Columbia Members of the Uniformed Services
(2) Goodnoe Hills, WA, 2017;
Valley AVA if the wines meet the AGENCY: Department of Defense (DoD)
eligibility requirements for these (3) Dot, WA, 2017; and
Office of General Counsel, DoD.
appellations. (4) Sundale, WA–OR, 2017.
ACTION: Interim final rule.
Regulatory Flexibility Act (c) Boundary. The Burn of Columbia
Valley viticultural area is located in SUMMARY: This interim final rule
TTB certifies that this regulation will Klickitat County in Washington. The implements requirements of the
not have a significant economic impact boundary of The Burn of Columbia National Defense Authorization Act
on a substantial number of small Valley viticultural area is as described (NDAA) for Fiscal Year 2020 permitting
entities. The regulation imposes no new below: members of the uniformed services or
reporting, recordkeeping, or other their authorized representatives to file
administrative requirement. Any benefit (1) The beginning point is on the
Sundale NW map, at the intersection of claims for personal injury or death
derived from the use of an AVA name caused by a Department of Defense
would be the result of a proprietor’s the Columbia River and the east shore
of Paterson Slough. From the beginning (DoD) health care providers s in certain
efforts and consumer acceptance of military medical treatment facilities.
wines from that area. Therefore, no point, proceed northerly along the east
Because Federal courts do not have
regulatory flexibility analysis is shore of Paterson Slough to its junction
jurisdiction to consider these claims,
required. with Rock Creek, and continuing
DoD is issuing this rule to provide
northeasterly along Rock Creek to its
Executive Order 12866 uniform standards and procedures for
intersection with the boundary of the
considering and processing these
Yakima Nation Trust Land; then
It has been determined that this final actions.
rule is not a significant regulatory action (2) Proceed south, then east, then
generally northeasterly along the DATES: This interim final rule is in effect
as defined by Executive Order 12866 of July 19, 2021. Comments must be
September 30, 1993. Therefore, no boundary of the Yakima Nation Trust
Land, crossing onto the Goodnoe Hills received by August 16, 2021.
regulatory assessment is required.
map, to the intersection of the Trust ADDRESSES: You may submit comments,
Drafting Information Land boundary with Kelley Road; then identified by docket number and/or
Regulatory Information Number (RIN)
Karen A. Thornton of the Regulations (3) Proceed north in a straight line to number and title, by any of the
and Rulings Division drafted this final the intersection with the main channel following methods:
rule. of Chapman Creek; then • Federal Rulemaking Portal: http://
List of Subjects in 27 CFR Part 9 (4) Proceed southeasterly www.regulations.gov. Follow the
(downstream) along Chapman Creek, instructions for submitting comments.
Wine. crossing over the Dot map and onto the • Mail: The DoD cannot receive
The Regulatory Amendment Sundale map, to the intersection of written comments at this time due to the
Chapman Creek with its southernmost COVID–19 pandemic. Comments should
For the reasons discussed in the tributary; then be sent electronically to the docket
preamble, TTB amends title 27, chapter (5) Proceed due east in a straight line listed above.
I, part 9, Code of Federal Regulations, as Instructions: All submissions received
to the creek running through Old Lady
follows: must include the agency name and
Canyon; then
docket number or RIN for this Federal
lotter on DSK11XQN23PROD with RULES1
PART 9—AMERICAN VITICULTURAL (6) Proceed southerly along the creek Register document. The general policy
AREAS to its intersection with the northern for comments and other submissions
shoreline of the Columbia River; then from members of the public is to make
■ 1. The authority citation for part 9 (7) Proceed westerly along the these submissions available for public
continues to read as follows: northern shoreline of the Columbia viewing at http://www.regulations.gov
Authority: 27 U.S.C. 205. River, returning to the beginning point. as they are received without change,
VerDate Sep<11>2014 17:19 Jun 16, 2021 Jkt 253001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 32195
including any personal identifiers or opportunity for a claimant to file an member is absent without leave or the
contact information. administrative appeal. injury is due to the member’s
FOR FURTHER INFORMATION CONTACT: Claims will be adjudicated based on intentional misconduct or willful
Melissa D. Walters, (703) 681–6027, uniform national standards consistent negligence). The new law provides for
melissa.d.walters.civ@mail.mil. with generally accepted standards used the possibility of additional
in a majority of States in adjudicating compensation beyond that provided by
SUPPLEMENTARY INFORMATION:
claims under the Federal Tort Claims this comprehensive compensation
I. Background Act (FTCA), 28 U.S.C. 2671 et seq., system for personal injury or death of a
without regard to the place where the military member caused by medical
Signed into law on December 20,
Service member received medical care. malpractice by a DoD health care
2019, section 731 of the 2020 NDAA
allows members of the uniformed III. Summary of Provisions Contained provider in certain circumstances.
Section 45.1 also notes that the new
services or their authorized in This Rule
medical malpractice claims process is
representatives to file claims for This rule discusses who may file a separate from the Military Health
personal injury or death caused by a claim (generally, a member of a System Healthcare Resolutions
DoD health care provider in certain uniformed service allegedly harmed Program.1 This existing program is an
military medical treatment facilities. incident to service by malpractice); independent, neutral, and confidential
Historically, members of the armed what DoD health care providers may be system that promotes full disclosure of
forces have been unable to bring suit involved (DoD personnel and personal factual clinical information involving
against the government under the Feres services contractors acting within the adverse events and outcomes, and
doctrine, named for the plaintiff in Feres scope of their employment or duties; mediation of clinical conflicts. The
v. United States. Based on this 1950 where the malpractice must have program is part of the Military Health
Supreme Court decision, active duty occurred (in a ‘‘military medical System’s commitment to transparency,
military personnel may not sue the treatment facility’’ (MTF) (10 U.S.C. which also includes a patient’s right to
government for personal injuries 1073d); how to file (a written request be heard as part of any quality assurance
suffered incident to service (generally, mailed to a Military Department-specific review. To the extent a military member
while on active duty). The 2020 NDAA address); records DoD will consider (or any other health care beneficiary)
allows Service members, with certain (submissions presented by claimant and seeks to obtain more information about
limitations, to bring administrative any available relevant government an adverse clinical event, the Healthcare
claims to seek compensation for records and information otherwise Resolutions Program continues to be a
personal injury or death resulting from available to DoD); who has the burden valuable resource independent of any
medical malpractice that occurred in of proof (claimant must substantiate the legal process or claims system.
certain military medical treatment claim); how to substantiate a claim; However, the Healthcare Resolutions
facilities, in addition to compensation deciding what caused the alleged harm Program is not involved with claims or
already received under the (DoD liability proportionate to harm legal matters. Thus, when a patient files
comprehensive compensation system attributable to DoD health care a malpractice claim, under § 45.1
that currently exists for military providers); use of final DoD or VA
Healthcare Resolutions Specialists
members and their families. disability determinations if applicable;
A substantiated claim under $100,000 disengage from further patient
calculating economic damages
will be paid directly to the member or communications related to the events
(principally actual and future health
his/her estate by DoD. The Treasury associated with the claim.
care costs, costs associated with long
Department will review and pay claims term care and disability, and loss of Section 45.2 Claims Payable and Not
that the Secretary of Defense values at future earnings); determining non- Payable in General
more than $100,000. Service members economic damages (including pain and Section 45.2 provides some of the
must present a claim that is received by suffering, up to a capped amount); and terms rendering claims payable and not
DoD within two years after the claim initial decision and administrative payable. This section also covers the
accrues. However, the statute allowed appeal procedures (a single DoD appeals time for filing claims, generally within
Service members to file claims in 2020 board decides appeals on the written two years after the claim accrues. For
for injuries that occurred in 2017. record as a whole). More detailed claims filed in calendar year 2020, the
II. Legal Authority for This Rule information is below. time for filing was expanded to three
Section 45.1 Purpose years. Because 10 U.S.C. 2733a(b)(4)
Based on section 731 of the NDAA, prescribes the time period for filing
this rule adds to Title 32 of the Code of Section 45.1 explains the purpose of
claims, state statutes of limitation or
Federal Regulations a new part 45, this part. It establishes the
repose are inapplicable. Consistent with
Medical Malpractice Claims by administrative process for adjudication
10 U.S.C. 2733a(g), there is a limitation
Members of the Uniformed Services. of claims under the new 10 U.S.C.
on the amount of attorney’s fees or
Title 10 U.S.C. 2733a(f)(2)(A)(ii) 2733a, which was added to 10 U.S.C. by
expenses. The adjudication of claims
describes the claims process, which section 731 of the National Defense
under this authority is not an
includes: The claimant’s submission of Authorization Act for Fiscal Year 2020.
adversarial proceeding, there is no
information to initiate a medical The current comprehensive
prevailing party to be awarded costs,
malpractice claim; the claimant’s compensation system that currently
and there is no judicial review. The
response to an adjudicator’s request for exists for military members and their
settlement and adjudication of medical
new information required to families, when members are injured or
malpractice claims of members of the

substantiate the claim or to determine die incident to service, applies to all
uniformed services is final and
damages; an Initial Determination causes of death or disability, whether
conclusive per 10 U.S.C. 2735.
issued by DoD; the opportunity for a due to combat injuries, training
claimant to seek reconsideration of mishaps, motor vehicle accidents, 1 https://health.mil/Reference-Center/Policies/
damage calculations in the case of clear naturally occurring illnesses, with 2019/06/18/Healthcare-Resolutions-Disclosure-
error; and, in most cases, the limited exceptions (e.g., when the Clinical-Conflict-Management-and-HCP.
32196 Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
A claim under this regulation is Section 45.4 Filing a Claim health care providers outside of DoD
payable only if it may not be settled or Rules for filing a claim are addressed and provide a copy of his or her medical
paid under any other law, including the in § 45.4. A member of a uniformed records from each of the identified
FTCA per Title 10 U.S.C. 2733a(b)(5). service or, when applicable, an health care providers, including a
Claims are adjudicated based on authorized representative, may file a statement that the records are complete.
generally accepted standards used in a claim. Any written claim will suffice A claimant must provide a medical
majority of States in adjudicating claims provided that it includes the following: release or medical releases upon DoD’s
under the FTCA without regard to the (a) The factual basis for the claim, request, enabling DoD to obtain medical
place where the service member which identifies the conduct allegedly records from the identified health care
received medical care per Title 10 constituting malpractice (e.g., theory of providers.
U.S.C. 2733a(f)(2)(B). In adjudicating DoD may require that the claimant
liability and/or breach of the applicable
claims, DoD will make every effort to provide additional information DoD
standard of care); (b) a demand for a
determine the applicable law adopted believes is necessary for adjudication of
specified dollar amount; (c) signed by
by the majority of States (at least 26 the claim, including the submission of
the claimant or claimant’s duly
States). an expert opinion at the claimant’s
authorized agent or legal representative;
expense. If DoD intends to deny a claim
Certain exclusions that are part of (d) if the claim is filed by an attorney,
in which an expert opinion has not been
FTCA law apply to claims under this an affidavit from the claimant affirming
submitted, prior to denying the claim,
new authority as well. These exclusions the attorney’s authority to file the claim
DoD will notify the claimant and
include the discretionary function on behalf of the claimant; (e) if the claim
provide the opportunity for submission
exception, which generally bars any is filed by an authorized representative, of an expert opinion at the claimant’s
claim challenging a discretionary an affidavit from the representative expense. DoD may determine an expert
agency policy. Another FTCA exclusion affirming his/her authority to file on opinion is not required when allegations
that is applicable to claims under this behalf of the claimant; and (f) unless the of medical malpractice are within the
part is the combatant activities alleged medical malpractice is within general knowledge and experience of
exception, although only in extremely the general knowledge and experience ordinary laypersons, such as when a
unusual circumstances such as an attack of ordinary laypersons, an affidavit from foreign object is improperly left in the
on a military hospital. It should be the claimant affirming that the claimant body or an operation occurred on the
noted, however, that the FTCA consulted with a health care wrong body part.
exception regarding any claim arising in professional who opined that a DoD There is no discovery process for
a foreign country is not applicable to health care provider breached the adjudication of claims. However,
claims under this part. Title 10 U.S.C. standard of care that caused the alleged claimants may obtain copies of records
2733a(f)(2)(B) refers to such claims as harm. Alternatively, if the claimant is in DoD’s possession that are part of their
covered by the new authority. represented by an attorney, unless the personnel and medical records in
alleged medical malpractice is within accordance with DoD Instruction
Section 45.3 Authorized Claimants the general knowledge and experience 5400.11, ‘‘DoD Privacy and Civil
of ordinary laypersons, the claim must Liberties Programs’’; 2 and DoD
Section 45.3 discusses who may file a include an affidavit from the attorney
medical malpractice claim. As provided Instruction 6025.18, ‘‘Health Insurance
affirming that the attorney consulted Portability and Accountability Act
in the statute, the claim must be filed by with a health care professional who
the member of the uniformed services (HIPAA) Privacy Rule Compliance in
opined that a DoD healthcare provider DoD Health Care Programs.’’ 3 Claimants
who is the subject of the medical breached the standard of care that
malpractice claim, or by an authorized are not entitled to attorney work
caused the alleged harm. This product, attorney client privileged
representative on behalf of a member requirement for an affidavit at the time
who is deceased or otherwise unable to communications, material that are
of filing the claim is consistent with the medical quality assurance records
file the claim due to incapacitation per practice in a majority of States to require protected under 10 U.S.C. 1102,
Title 10 U.S.C. 2733a(b)(1). A claim may an expert report, expert affidavit, predecisional material, or other
be filed by or on behalf of a reserve certification or affidavit of merit, or a privileged information.
component member if the claim is in similar requirement.
connection with personal injury or While DoD is not requiring an expert Section 45.5 Elements of a Payable
death occurring while the member was opinion at the time of filing a claim, Claim; Facilities and Providers
in a Federal duty status. 10 U.S.C. claimants may submit whatever Section 45.5 covers one of the
2733a(i)(3). The statute only authorizes information and documentation they statutory elements of payable claims,
claims by members of the uniformed believe necessary to support their claim, stating that the health care involved
services. Thus, the regulation does not as claimants have the burden to occurred in a covered military medical
permit derivative claims or other claims substantiate their claims. As part of the treatment facility by a DoD health care
from third parties alleging a separate investigation and evaluation of a claim, provider acting within the scope of
injury as a result of harm to a member DoD will access pertinent DoD or other employment. As stated in the statute,
of the uniformed services. Additionally, available government information the claimed act or omission constituting
medical malpractice claims from systems and records regarding the medical malpractice must have occurred
members must be for an injury incident member in order to consider fully all in a DoD medical center, inpatient
to service per 10 U.S.C. 2733a(a). For facts relevant to the claim. This may hospital, or ambulatory care center. A
members on active duty, almost any include information in personnel
injury or illness arising out of medical records, medical records, the Defense 2 Available at https://www.esd.whs.mil/Portals/
care received at a MTF by a DoD health Eligibility and Enrollment System 54/Documents/DD/issuances/dodi/
care provider is considered incident to (DEERS), reports of investigation, 540011p.pdf?ver=gM7QU0FeRs8wMwz
FXS8uSA%3d%3d.
service. Medical care provided to a medical quality assurance records, and 3 Available at https://www.esd.whs.mil/Portals/
service member based on military status other information. Upon DoD’s request, 54/Documents/DD/issuances/dodi/
is incident to service. a claimant must identify any pertinent 602518p.pdf?ver=2019-03-13-125803-017.
claim may not be based on health care health care provided to the patient. As person for essential household services
services provided by DoD health care required by 10 U.S.C. 1102, DoD and activities of daily living that the
providers in any other locations, such as medical quality assurance records are member can no longer provide for
in the field, battalion aid stations, ships, confidential. While such records may be himself or herself.
planes, deployed settings, or any other used by DoD, any information contained
Section 45.10 Calculation of Damages:
place that is not a covered MTF. With in or derived from such records may not Non-Economic Damages
respect to covered DoD health care be disclosed to the claimant.
providers, they include members of the Non-economic damages are also
uniformed services, DoD civilian Section 45.7 Element of Payable covered as outlined in § 45.10. Elements
employees, and personal services Claim: Proximate Cause of non-economic damages in medical
contractors of the Department Rules on determining whether the malpractice cases consist of past and
authorized by DoD to render health care alleged malpractice was the proximate future conscious pain and suffering,
services. A non-personal services cause of the harm suffered by the physical disfigurement, and loss of
contractor or a volunteer working in an member are the subject of § 45.7. In enjoyment of life. Consistent with the
MTF is not a DoD health care provider general, a claimant must prove by a rule of law in a majority of States, total
for purposes of a payable claim. Claims preponderance of evidence that a non-economic damages may not exceed
filed in court against non-personal negligent or wrongful act or omission by a cap amount. Based on the current
services contractors and volunteers a DoD health care provider was the average cap amount in those States, the
would be analyzed under the Feres proximate cause of the harm suffered by total cap amount for all non-economic
doctrine. The DoD health care provider the member. DoD is liable for only the damages arising from the malpractice is
must be acting within the scope of portion of harm that is attributable to set at $500,000.
employment, meaning that the provider the medical malpractice of a DoD health Section 45.11 Calculation of Damages:
was acting in furtherance of his or her care provider per 10 U.S.C. 2733a(c)(1). Offsets for DoD and VA Compensation
duties in the MTF. For personal services To the extent other causes contributed
contractors, ‘‘scope of employment’’ Section 45.11 provides that in the
to the personal injury or death of the
means the contractor was acting within calculation of damages there is a
member, whether pre-existing,
the scope of his or her duties. deduction for compensation paid or
concurrent, or subsequent, the potential
expected to be paid by DoD or VA to the
Section 45.6 Element of Payable amount of compensation under this
service member for the same harm that
Claim: Negligent or Wrongful Act or regulation will be reduced by that
is caused by the medical malpractice.
Omission proportion of the alternative cause(s);
Tort damage awards against the U.S. are
however, if the claimant’s own
Section 45.6 establishes rules for generally offset by other compensation
negligence constituted more than 50% paid by the U.S. for the same harm that
determining if a provider’s act or of the fault, the claim is not payable.
omission was negligent or wrongful. In is the subject of a malpractice claim so
general, a claimant needs to prove by a Section 45.8 Calculation of Damages: that the U.S. does not pay more than
preponderance of evidence that a DoD Disability Rating once for the injury.
health care provider in a covered MTF This section lists categories of
Section 45.8 provides rules related to compensation that are included as
acting within the scope of employment disability ratings and adjudication of
had a professional duty to the patient offsets to potential malpractice damages
these ratings under disability evaluation awards when that compensation relates
involved and by act or omission systems. DoD will use the disability
breached that duty in a manner that to harm caused by the act or omission
rating established in the DoD Disability involved, including: Pay and allowances
proximately caused the harm. The Evaluation System under DoD
provider must exercise the same degree while a member remains on active duty
Instruction 1332.18 4 or otherwise or in an active status; disability retired
of skill, care, and knowledge ordinarily established by the Department of
expected of providers in the same field pay; disability severance pay;
Veterans Affairs (VA) to assess the incapacitation pay; involuntary and
or specialty in a comparable clinical extent of the harm alleged to have been
setting. The standard of care is voluntary separation pays and
caused by medical malpractice. A incentives; death gratuity; housing
determined based on generally VASRD-based disability percentage
recognized national standards, not on allowance continuation; Survivor
represents the Government’s estimate of Benefit Plan; VA disability
the standards of a particular region,
the lost earning capacity attributable to compensation; VA Dependency and
State or locality. A claimant may
an illness or injury incurred during Indemnity Compensation; Special
present evidence to support what the
military service. Survivor Indemnity Allowance; Special
claimant believes is the standard of care.
A claimant may present evidence to Section 45.9 Calculation of Damages: Compensation for Assistance with
support the failure of the DoD health Economic Damages Activities of Daily Living; Program of
care provider to meet the standard of Comprehensive Assistance for Family
Calculation of economic damages,
care based on the medical records of the Caregivers; and the Fry Scholarship.
which are one component of a potential
patient and other documentary evidence Also included is an offset of the value
damages award, is the subject of § 45.9.
of the acts or omissions of the health of TRICARE coverage, including
Elements of economic damages in
care provider. TRICARE-for-Life for a disability retiree,
personal injury claims are past
In addition to the information family, or survivors. Future TRICARE
expenses, including medical, hospital
submitted by the claimant, DoD may coverage is a major part of the
and related expenses actually incurred,
consider all relevant information in DoD Government’s compensation package for
and future medical expenses. Also

records and information systems or a disability retiree or survivor. Potential
covered are lost earnings, loss of earning
otherwise available to DoD, to include malpractice awards are not offset by the
capacity, and compensation paid to a
information prepared by or on behalf of present value of some payments and
DoD in connection with adjudication of 4 Available at https://www.esd.whs.mil/Portals/ benefits for which Service members
the claim. DoD will consider medical 54/Documents/DD/issuances/dodi/ have made payments or contributions,
quality assurance records relevant to the 133218p.pdf?ver=2018-05-24-133105-050. which would be difficult to quantify,
including Servicemembers Group Life or her claim, where applicable, and DoD the alleged clear error and will issue an
Insurance; Traumatic Servicemembers intends to deny the claim, DoD will Initial Determination on
Group Life Insurance; Social Security issue an Initial Determination stating, Reconsideration either granting or
disability benefits; Social Security without more, that DoD will issue a denying reconsideration of the Initial
survivor benefits; prior Government Final Determination denying the claim Determination and adjusting the
contributions to a Thrift Savings Plan in the absence of an expert report. DoD damages calculation, if appropriate. The
that are inherited by a beneficiary; and will provide the claimant 90 calendar Initial Determination on
commissary, exchange, and morale, days following receipt of the Initial Reconsideration will include
welfare, and recreation facility access; Determination to submit an expert information on the claimant’s right to
the value of legal assistance and other report, unless an extension of time is appeal.
services provided by DoD. Medical care granted for good cause. If the claimant
Section 45.13 Appeals
provided while in active service or in an does not timely submit an expert report,
active status prior to death, retirement, DoD will issue a Final Determination The issue of appeals from Initial
or separation is also not offset. denying the claim, which may not be Determinations is addressed in § 45.13.
To illustrate what benefits are appealed, and will provide a brief In any case, other than a claim that is
available under the existing explanation of the basis for the denial of denied for failure to provide an expert
comprehensive compensation system, the claim to the extent practicable. report, in which the claimant disagrees
both those that are offset and those that Except as provided above, DoD will with the Initial Determination, the
are not, and the value of these benefits, endeavor to provide a brief explanation claimant has a right to file an
tables below in the section titled, of the basis for an Initial Determination administrative appeal. A claimant
‘‘Impact to the Government,’’ provide to the extent practicable. However, as should explain why he or she disagrees
notional examples of benefits available required by 10 U.S.C. 1102, medical with the Initial Determination but may
under the existing comprehensive quality assurance records may not be not submit additional information in
compensation system during Fiscal Year disclosed to anyone outside DoD, to support of the claim unless requested to
2020. include the claimant, other Federal do so by DoD.
DoD will estimate the present value of agencies, or the judiciary. This An appeal must be filed within 60
future payments and benefits. Many of prohibition applies to any information calendar days of the date of the Initial
such payments and benefits in cases of derived from a peer review obtained Determination, unless an extension of
death and disability are lifetime benefits under DoD’s Clinical Quality time is granted for good cause. If no
for members or survivors. With respect Management (CQM) Program to assess timely appeal is filed, DoD will issue a
to future compensation and benefits that the quality of medical care provided by Final Determination.
would change if a surviving spouse a DoD health care provider. DoD has a Under the new rule, appeals will be
remarries, DoD will not assume very extensive CQM Program (under decided by an Appeals Board
remarriage. DoD Instruction 6025.13 5 and Defense administratively supported by the
Health Agency Procedural Manual Defense Health Agency. The Appeals
Section 45.12 Initial and Final Board will consist of not fewer than
6025.13) 6 to assess the quality of health
Determinations three and no more than five DoD
care services, identify areas where
Section 45.12 provides rules for improvements can be made, and ensure officials designated by the Defense
provision to claimants of an Initial appropriate accountability. The CQM Health Agency from the Defense Health
Determination regarding the claim. The Program includes a peer review of every Agency and/or the Military Departments
Initial Determination may take the form potentially compensable event. DoD who are experienced in medical
of a grant of a claim and an offer of considers records of these reviews in malpractice claims adjudication.
settlement or denial of the claim. determining whether there was a Appeals Board members must not have
If a claim does not contain the negligent or wrongful act or omission by had any previous role in the claims
information required by § 45.4(b), DoD a DoD health care provider in relation adjudication under appeal. Appeals are
will issue an Initial Determination to the claim but may not lawfully decided on the written record and
stating that DoD will issue a Final disclose this information. Therefore, decisions will be approved by a majority
Determination denying the claim unless while DoD will attempt to explain the of the members. There is no adversarial
the deficiency is cured. DoD will basis for the Initial Determination, DoD proceeding and no hearing. The Appeals
provide the claimant 30 calendar days cannot disclose any information covered Board may obtain or request information
following receipt of the Initial by 10 U.S.C. 1102. or assessments from appropriate
Determination to cure the deficiency, The Initial Determination will include sources, including from the claimant, to
unless an extension of time is granted information on the claimant’s right to assist in deciding appeals. The claimant
for good cause. If the claimant does not file an administrative appeal. The has the burden of proof by a
timely cure the deficiency, DoD will claimant may request reconsideration of preponderance of evidence that the
issue a Final Determination denying the the damages contained in an Initial claim is substantiated in the written
claim for failure to cure the deficiency. Determination if, within the time record considered as a whole. Every
A Final Determination issued under otherwise allowed to file an claimant will be provided a written
§ 45.12(a) may not be appealed. administrative appeal, the claimant Final Determination on the claimant’s
If a claim does not, based upon the identifies an alleged clear error in the appeal, which may adopt by reference
information provided, state a claim damages calculation. DoD will review the Initial Determination or revise the
cognizable under 10 U.S.C. 2733a or this Initial Determination, as appropriate. If
interim final rule, DoD will issue an 5 DoDI 6025.13, ‘‘Medical Quality Assurance the Final Determination revises the
Initial Determination denying the claim. (MQA) and Clinical Quality Management in the Initial Determination, DoD will provide
An Initial Determination on these Military Health System (MHS),’’ February 17, 2011; a brief explanation of the basis for the
Incorporating Change 2 on April 1, 2020 (whs.mil). revisions to the extent practicable.
grounds may be appealed under the 6 https://health.mil/Reference-Center/
procedures in § 45.13. Policies?query=6025.13&isDateRange=
Appeals Board decisions are final and
If the claimant initially does not 0&broadVector=000&newsVector=0000000& conclusive. The Appeals Board may
submit an expert report in support of his refVector=000000000100000&refSrc=1. reverse the Initial Determination to
grant or deny a claim and may adjust comprehensive activities to monitor the information is needed. DoD will ask you
the settlement amount contained in the quality of health care in MTFs, identify for this information at that time. You
Initial Determination either upwards or opportunities for improvement, and may, but are not required to, submit any
downwards, as appropriate. maintain appropriate accountability for other information that you believe
health care providers. That system supports your claim at the time you file
Section 45.14 Final and Conclusive
includes procedures to grant and take it.
Resolution c. Where to File a Claim. You should
specified adverse actions on clinical
Section 45.14 states that, as provided privileges and report certain events to submit the claim to your Military
in the statute, the adjudication and the National Practitioner Data Bank Department.
settlement of a claim is final and (NPDB) maintained by the Department Army: Claims should be presented to
conclusive. Unlike the FTCA, the of Health and Human Services as a data the nearest Office of the Staff Judge
Military Claims Act, 10 U.S.C. chapter repository available to health care Advocate, to the Center Judge Advocate
163, which provides the authority for systems throughout the United States.9 of the Medical Center in question, or
this regulation, does not give Federal NPDB reporting includes cases where with US Army Claims Service, 4411
courts jurisdiction over claims. Thus, DoD compensation is paid through the Llewellyn Avenue, Fort Meade,
the administrative adjudication process Disability Evaluation System or survivor Maryland 20755, ATTN: Tort Claims
for all claims under the Military Claims benefits attributable to medical Division.
Act, including medical malpractice malpractice by a DoD health care Navy: Information, directions and
claims under this part, is final and not provider and now, under this part, paid forms for filing a claim may be found at
subject to judicial review in any court. malpractice claims. Reports to the NPDB https://www.jag.navy.mil/. Claims
No claim may be paid unless the are accompanied by reports to State should be mailed to the Office of the
amount tendered is accepted by the licensing boards and certifying agencies Judge Advocate General, Tort Claims
claimant in full satisfaction. Settlement of the health care providers involved. Unit, 9620 Maryland Avenue, Suite 205,
agreements will incorporate the Therefore, in addition to providing an Norfolk, Virginia 23511–2949.
statutory requirements regarding additional potential compensation Air Force: Claims should be presented
limitations on attorneys’ fees, as well as remedy, 10 U.S.C. 2733a reinforces DoD either at the Office of the Staff Judge
a bar to any other claim against the Clinical Quality Management Program Advocate at the nearest Air Force Base,
United States or DoD health care procedures for appropriate or sent by mail to AFLOA/JACC, 1500
providers arising from the same set of accountability of DoD health care W Perimeter Road, Suite 1700, Joint
facts. providers. Base Andrews, MD 20762. POC:
Medical Law Branch, AFLOA/JACC
Section 45.15 Other Claims Procedures IV. What To Expect in the Claims 240–612–4620 or DSN 612–4620.
and Administrative Matters Process d. Time for Filing a Claim. Generally,
Finally, § 45.15 sets out other claims a. Who may File a Claim. Service you must file your claim by the later of
procedures and administrative matters. members or former/retired Service (1) two years from the date of the injury
If the claimant is represented by members (‘‘you’’) may file a claim. Your or death; or (2) the date you knew, or
counsel, all communications will be authorized representative may file a with the exercise of reasonable diligence
through the claimant’s counsel. claim on your behalf if you are deceased should have known, of the injury or
Laws applicable to false claims and or incapacitated. DoD will acknowledge death and that the possible cause of the
false statements to the Government are receipt of your claim via mail and/or injury or death was malpractice. A
applicable to claims and information email using the contact information you special rule existed in 2020 that allowed
relating to claims under this new provided in your claim. claims from 2017 to be filed in 2020, but
authority. b. What to Include with a Claim. Your that rule has expired.
This section also notes the claim must provide, in writing, the e. Initial Determination on Your
requirement of 10 U.S.C. 2733a(e) that reason why you believe a DoD health Claim. Once you have filed your claim,
not later than 30 calendar days after a care provider committed malpractice DoD will locate medical records held by
determination of medical malpractice or and the amount of money you believe DoD and VA and review your claim to
the payment of a claim, a report is sent you should receive. No specific form or determine whether malpractice
to the Director, Defense Health Agency format is required. occurred.
to be used for all necessary and If you have an attorney, you need to DoD may ask you for additional
appropriate purposes, including include in your claim filing an affidavit information about your medical care as
medical quality assurance. This means confirming that you have authorized the part of this review. If DoD concludes
that DoD Final Determinations made attorney to represent you. that medical malpractice occurred, DoD
under this new claims system—even if, You usually will need to provide an may ask you for information about the
due to offsets for compensation under affidavit with your claim filing that you harm to you as a result of malpractice
the comprehensive system discussed consulted with a health care to determine the amount of money you
above, no money is paid—will be professional who opined that a DoD will be offered as a settlement. This
reviewed under the Military Health health care provider breached the amount of money is also called
System Clinical Quality Management medical standard of care and caused ‘‘damages.’’
Program, in accordance with DoD harm to you. You do not need to If DoD intends to deny your claim and
Instruction 6025.13 7 and Defense provide this affidavit if the malpractice you have not yet submitted an expert
Health Agency Procedural Manual is obvious, such as an operation on the report in support of your claim, DoD
6025.13.8 That program features wrong body part. will provide you with an opportunity to
Because all claims differ, nothing else submit one before denying your claim.
7 Available at https://www.esd.whs.mil/Portals/
is required at the time you file your You usually will have 90 days to
54/Documents/DD/issuances/dodi/
602513p.pdf?ver=2019-03-11-081734-313.
claim. DoD may find during the review provide an expert report.
8 Available at https://health.mil/About-MHS/ of your claim that additional Once DoD has completed its review of
OASDHA/Defense-Health-Agency/Resources-and- your claim, you will be issued an Initial
Management/DHA-Publications. 9 Available at https://www.npdb.hrsa.gov/. Determination. This Initial
Determination will either state that your Final Determination after you sign a c. Affected Population 10
claim is granted and offer you an settlement agreement provided to you At the end of Fiscal Year 2019, there
amount of money in settlement of your by DoD. were approximately 1,400,000 Active
claim or will state that your claim is i. Claims Process is Final. This claims Duty, 390,000 Reserve and National
denied. process is the only process for Service Guard, and 250,000 other uniformed
A settlement does not entitle you to members to bring medical malpractice Service members eligible for DoD
any new benefits from DoD or the VA. claims related to their service. You may healthcare benefits.11 or around 19% of
A settlement will not cause you to lose not challenge a Final Determination or the total eligible beneficiary population.
any DoD or VA benefits, whether at the the amount of any damages calculation These uniformed Service members will
time of the settlement or in the future. contained in a Final Determination in be able to file claims with DoD alleging
f. Reconsideration. If DoD has made a court. malpractice. There were approximately
clear error in the calculation of the
j. Attorneys. You may have an 8,140,000 other eligible beneficiaries to
amount of money you are offered to
attorney assist you with your claim. If include retirees, retiree family members,
settle your claim, you may request and family members of Active Duty
reconsideration. A clear error is an you have an attorney, DoD will
communicate with your attorney instead Service members. These other eligible
obvious or typographical error, such as beneficiaries currently may file claims
a reference to $10 when it is clear $100 of with you regarding your claim. Your
attorney may not charge you attorney with DoD alleging malpractice.
was intended. The reconsideration
process was intended to fix minor issues fees of more than 20 percent of the d. Costs
without requiring you to file an appeal. amount paid to you under this process.
As a result of the rule, individuals
You must file your request for V. Regulatory Analysis who believe they were subjected to
reconsideration within 60 days of malpractice may consider filing a claim.
receipt of an Initial Determination. DoD a. Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive In determining whether to file a claim,
will assume that you received the Initial individuals may consult with medical
Determination within five calendar days Order 13563, ‘‘Improving Regulation
and Regulatory Review’’ professionals and attorneys and we
after the date the Initial Determination assume that most claimants will have
was mailed or emailed. Executive Orders 13556 and 12866 attorneys. We estimate that this will
g. Appeals. If you disagree with an direct agencies to assess all costs and require 5 hours for individuals to locate
Initial Determination, you generally may benefits of available regulatory an attorney, view and download
file an administrative appeal. Your alternatives and, if regulation is pertinent medical records, and discuss
appeal should explain why you disagree necessary, to select regulatory the case with an attorney (or a medical
with the Initial Determination. You approaches that maximize net benefits professional for claimants without
must file your appeal within 60 days of (including potential economic, attorneys). At a mean hourly rate of
receipt of an Initial Determination. DoD environmental, public health and safety $27.07 based on data from the Bureau of
will assume that you received the Initial effects, distribution of impacts, and Labor Statistics (BLS),12 the cost of this
Determination within five calendar days equity). Executive Order 13563 activity is $135.
after the date the Initial Determination emphasizes the importance of The cost for a consultation with a
was mailed or emailed. quantifying both costs and benefits, of medical professional, whether directly
You may not appeal a Final reducing costs, of harmonizing rules, by the claimant or through an attorney
Determination issued because of and of promoting flexibility. varies by the type of professional. Based
deficiencies in your claim filing such as Accordingly, this interim final rule has upon information available from
a missing affidavit or because DoD has been reviewed by the Office of consultations and reports obtained in
determined you need to submit an Management and Budget under the malpractice claims against the
expert report. You will have been given requirements of these Executive Orders. government and estimates of time spent
an opportunity to fix deficiencies or It has been determined to be a by DoD in similar activity when
submit an expert report before the Final significant regulatory action, although handling those claims, we estimate a
Determination is issued. not economically significant. typical review of records would take
Your appeal will be decided by an Accordingly, this regulatory impact about 3 to 5 hours (and include
Appeals Board of three to five DoD analysis presents the costs and benefits reviewing journals in support of the
officials who have experience with of the rulemaking. professional’s opinion), with an
medical malpractice claims and have no additional 2 to 4 hours to write a report
prior connection to your claim. b. Summary (if such a report is submitted with a
You may not submit additional
information in support of your claim on This interim final rule implements 10 Data are from the ‘‘Evaluation of the TRICARE
appeal. DoD will ask you for additional requirements of the National Defense Program: Fiscal Year 2020 Report to Congress—
information if it is needed. Authorization Act (NDAA) for Fiscal Access, Cost and Quality Data through Fiscal Year
The Appeals Board will issue a Final Year 2020 permitting members of the 2019.’’ which can be found at https://health.mil/
uniformed services or their authorized Reference-Center/Reports/2020/06/29/Evaluation-
Determination on your claim. The of-the-TRICARE-Program-Fiscal-Year-2020-Report-
Appeals Board may reverse the Initial representatives to file claims for to-Congress.
Determination to grant or deny a claim. personal injury or death caused by a 11 Active Duty include members of the Army,
The Appeals Board may adjust the Department of Defense (DoD) health Navy, Air Force, Marines. The other uniformed
damages amount in the Initial care providers in certain military services are the Coast Guard, Public Health Service,
medical treatment facilities. Because and the National Oceanic and Atmospheric
Determination either upwards or Administration. The Space Force was established
downwards. A Final Determination is Federal courts do not have jurisdiction December 20, 2019, and was not included in this
not subject to review in any court. to consider these claims, DoD is issuing Fiscal Year 2019 data.
If you do not file an appeal, DoD will this rule to provide uniform standards 12 According to the Bureau of Labor Statistics, the
and procedures for considering and median weekly earnings for full-time wage and
issue a Final Determination. salary workers in 2020 was $984.00, for an hourly
h. Settlement Agreement. You will be processing these actions rate based on a 40-hour workweek of $24.60. See
paid the damages amount offered in a administratively. https://www/bls.gov/cps/cpsaat39.htm.
claim, which is not required). The However, this rule results in societal $1,401,102 to $2,857,602 each year for
Department will assume for purposes of costs associated with these notarial considered claims.
this analysis that the same type of services. We estimate that notarial Next, we estimate costs associated
professional would be consulted as the services will require the equivalent of with processing claims. Many steps in
professional against whom the 20 minutes of paralegal time. Using BLS processing a claim will be the same for
malpractice is alleged (e.g., a doctor data,15 and adjusting upward by 100 DoD whether or not the claim has merit.
providing an opinion about the standard percent to account for overhead and Based on activity in non-medical
of care if a doctor is alleged to have benefits to arrive at an hourly rate of malpractice claims, we anticipate 3
committed malpractice). Most medical $54.44 implies $18.14 in costs per hours of paralegal time for activities
malpractice claims are brought on a claim. Finally, although not required, a such as logging in claims, sending
contingent fee basis 13 so there is no claimant could submit any other acknowledgment letters, mailing
initial cost to the claimant. Based on information he or she chooses, which certified letters containing the outcome
similar claim analysis activity in would result in a variable cost. DoD of a claim, drafting vouchers for
handing malpractice claims, we assumes that pertinent medical records payment, and filing/data entry.
estimate an attorney might spend 17–26 outside its system would be fairly recent Assuming a GS–11 paralegal at the step
hours analyzing a claim before filing. could be accessed via web portals, 5 salary rate of $81,634 based on the
We use BLS data 14 to value time spent resulting in a cost to the claimant of 2020 Washington, DC, locality pay table
by these individuals, and we adjust only the cost of printing and postage. If (an hourly rate of $39.12) and the total
mean wage rates upward by 100 percent the claimant elects to submit receipts, value of labor including wages, benefits,
to account for overhead and benefits. the claimant would need to pay the cost and overhead being equal to 200 percent
This implies hourly rates of $206.12 for of printing or photocopying, as well as of the wage rate, the cost for this
physicians, $76.94 for nurses, and postage. DoD requests public comment paralegal activity per claim is $234.72.
$111.62 for physician assistants, and on costs faced by claimants. We estimate that the approximately
$143.18 for lawyers. As a result, the In 2020, DoD received 149 same amount of time that a claimant’s
estimated cost for medical review would malpractice claims filed by Active Duty attorney would spend analyzing a claim
be approximately $231 to $1,855, and beneficiaries under the process in this (17–26 hours of attorney time) would be
the estimated cost for attorney time Part and 173 malpractice claims filed by spent by DoD attorneys to analyze the
would be approximately $2,434 to other beneficiaries under either the claim, conduct legal research, consult
$3,723. FTCA or MCA. Section 2733a(b)(4) with experts, and draft a determination.
The cost to a Service member or an requires claims to be presented to DoD Assuming a GS 13/14 at an average GS
authorized representative for the filing within two years after the claim accrues, 13/14 salary of $127,788 based on the
itself will vary based on the amount of although section 731 of the Fiscal Year 2020 Washington, DC, locality pay table
information the Service member 2020 NDAA allowed claims accruing in (an hourly rate of $61.23) and the total
includes with his or her filing. A basic 2017 to be filed in 2020. In future years, value of labor including wages, benefits,
letter stating the factual basis for the and overhead being equal to 200 percent
when three years’ worth of claim filings
claim and including a demand for a of the wage rate, this attorney activity
are not compressed in the same year and
specified dollar amount would cost the would cost $2,081 to $3,184 per claim.
the requirement for consultation with a Of these 50 claims, for purposes of
claimant postage ($0.55 per claim, or
health care professional in certain this analysis, based on historical
$27.50 for an estimated 50 claims) and
circumstances in advance of filing takes malpractice claims data involving non-
possibly minimal photocopying.
effect, DoD would anticipate around 50 Service members, we assume 27% of
Claimants will likely choose to use
claims per year.16 Based on information claimants will have claims for which
certified mail, requiring additional
related to malpractice claims not filed DoD determines malpractice occurred,
postage of $3.35 per claim (or $167.50
after consideration, we estimate that or 14 claims. For these claims, based on
for an estimated 50 claims per year).
90% of the claims considered by time spent by DoD on the damages
Two affidavits are likely required, one
individuals and their attorneys will not portion of current malpractice claims
containing a statement from the
be filed.17 As a result, we estimate that against the government, DoD estimates
claimant indicating he or she consulted
500 claims will be considered, and that claimants’ attorneys and DoD attorneys
with a health care professional and
50 claims will be filed by Service will spend 6–8 hours respectively on
obtained an opinion from that health
members per year. matters pertaining to damages. This
care professional that the medical
standard of care was breached and one The categories of costs for considered results in a cost per claim of $859 to
affirming that a representative is claims are described above. In sum, we $1,145 for claimants’ attorneys and $748
authorized to represent the claimant. estimate costs of $2,822 to $5,735 per to $997 for DoD attorneys.
Those entitled to legal assistance under claim. This implies total costs of Of submitted claims, DoD estimates
10 U.S.C. 1044 (such as Active Duty that claimants will appeal all claims
Service members, retired Service
15 See https://www.bls.gov/oes/2020/may/oes_
that do not result in a payment of
nat.htm. damages, resulting in 36 appeals
members, and survivors) would be able 16 These are the total number of claims, prior to
to obtain notarial services at no cost. annually. Note that this is described in
any analysis of the merits of the claims, or analysis
Most likely, those filing claims would of whether the claims were properly filed (e.g., more detail in the transfers section. We
fall into one of these categories and so whether the claims were timely). The Congressional estimate it will take around the same
could obtain notarial services at no cost.
Budget Office (CBO), when scoring section 731, amount of time spent on initial
assumed an additional 50 claims per year would be determination activities for appeal
paid at cost of $600,000 per claim, for a total of
13 Joanna Shepherd, Uncovering the Silent $30,000,000 per year or $300,000,000 over 10 years. activities, or 17–26 hours per claim for
Victims of the American Medical Liability System, These estimates did not appear to take into account both claimants’ attorneys (at a cost of
67 Vanderbilt Law Review 151, 162 (2019) offsets so the number of paid claims will be less. $2,434 to $3,723) and DoD attorneys (at
Available at: https://scholarship.law. 17 Joanna Shepherd, Uncovering the Silent
a cost of $2,081 to $3,184) and 3 hours
vanderbilt.edu/vlr/vol67/iss1/2. Victims of the American Medical Liability System,
14 See https://www.bls.gov/oes/2020/may/oes_ 67 Vanderbilt Law Review 151 (2019) Available at:
per claim by DoD paralegals (at a cost
nat.htm. Note that we use wages for family medical https://scholarship.law.vanderbilt.edu/vlr/vol67/ of $235). This implies total annual costs
physicians as a proxy for physicians. iss1/2. of $171,000 to $257,112 for appeals.
As a result, we estimate total annual members have paid premiums, benefits system, both those that are offset and
processing costs for these 50 claims to received through the DoD and VA those that are not, and the value of these
be $309,284 to $458,036. comprehensive compensation system benefits in Fiscal Year 2020. In addition
In summary, total estimated annual applicable to all injuries and deaths will to the benefits in the above tables,
costs of this interim final rule are be applied as an offset in calculating disability retirees and survivors receive
$1,710,386 to $3,315,638. malpractice damages to prevent a healthcare for life through TRICARE. In
double recovery. Because of these Fiscal Year 2020, based on information
e. Transfers offsets, regardless of the number of from the Office of the Assistant
Regardless of the number of claims in claims filed, the only claims pertinent Secretary of Defense for Health Affairs,
which malpractice occurred, the only for purposes of payments made by the the average value of the TRICARE
claims in which damages will be government are those that would exceed benefit for an under-65 retiree family of
awarded are those which exceed the applicable offsets. three was $14,600 per year. Benefits
offsets for any payment to be made.18 We estimate 7 claims per year will provided through the Social Security
Subject to some exceptions such as result in additional payments made to Administration, such as Social Security
insurance benefits for which Service individuals, which is the number of disability benefits and Social Security
claims anticipated to involve additional survivor benefits, are also in addition to
18 The Congressional Budget Office (CBO), when payments after offsets are applied. To the above tables. Calculations in the
scoring section 731, assumed an additional 50 help explain how we reached this tables were provided by the Office of
claims per year would be paid at cost of $600,000 estimate, we prepared the following Military Compensation Policy, within
per claim, for a total of $30,000,000 per year or
$300,000,000 over 10 years. These estimates did not
tables as notional examples to illustrate the Office of the Under Secretary of
appear to take into account offsets so the number what benefits are available under the Defense for Personnel and Readiness.
of paid claims will be less. existing comprehensive compensation BILLING CODE 5001–06–P
******************************************************************************
Table 1: Notional Examples of Benefits Following a Service Member's Death on Active Duty -
Fiscal Year 2021 Values
(a) (b)
(c)
0-5 19 (16 E-6 (10 YOS)
E-4 (3 Years
Years of Married (age
of Service)
Type of Service) 29) with Two
Description Married (age
Payment Married (age Children
22) with One
38) with Two
Child
Children
Amount Amount Amount
Service Life insurance. All
Members members are
Group Life automatically covered
Insurance unless declining
0 (SGLI) coverage. Amount $400,000 $400,000 $400,000
~ shown assumes
t,,j
I
""'3
member elected
""" maximum coverage.
~
t,,j Payment is tax-free.
"ti Death Gratuity Immediate tax-free
~ payment to eligible
~ survivors of members
t,,j
~ who die while on $100,000 $100,000 $100,000
""'3 active duty or certain
r.,J
inactive duties.
Amount does not vary.
Total Immediate Payments $500,000 $500,000 $500,000
~ Survivor Annuity paid to the

t,,j
(") Benefit Plan surviving spouse for
~ (SBP) life, or until
~ remarriage if surviving
"""
~ spouse remarries prior
$41,304 $17,274 $10,679
C':l to age 57. This
> ($25,013 after ($984 after DIC (fully offset
~
payment is offset by
DIC offset) offset) by DIC)
~ Dependency and
~
> Indemnity
t"" Compensation (DIC),
"ti
> if DIC is paid to the
-< spouse. 20
~
t,,j Dependency Tax-free monetary
~ and Indemnity benefit paid to eligible $24,362.40 $24,362.40 $20,326.56
""'3
r.,J survivors of military
ER17JN21.000</GPH>
(a) (b)
(c)
0-5 19 (16 E-6 (lOYOS)
E-4 (3 Years
of Service)
22)with One
38)with Two
Child
Children
Compensation members who died in
(DIC) the line of duty or
eligible survivors of
Veterans whose death
resulted from a
service-related injury
or disease. Paid by
Department of VA. 21
Special Paid to the surviving
Survivor spouse if the spouse is
Indemnity subject to an offset of $3,924 $3,924 $3,924
Allowance SBP due to receipt of
(SSIA) DIC. 22
Total Annual SBP ( decreased by the
Recurring amount of DIC)+ DIC
Payment for + SSIA. Amount $53,299 $29,270 $24,250
First Year shown is in 2020
dollars.
Estimated Assumptions:
Lifetime Sum • Spouse lives to age
of Annual 87, but does not
Payments remarry prior to age
57.
• SBP (offset by DIC)
is paid to the spouse
for life rather than
to the children.
• DIC for child ends
10 years after the
death of the member $4,842,372 $3,151,453 $3,749,434
when children reach
age 19 (note: for the
E-4, it assumes 15
years after death of
the member) and
resumes when the
spouse reaches age
65.
• Average annual cost
of living adjustment
is 2.75%.
ER17JN21.001</GPH>
(a) (b)
(c)
0-5 19 (16 E-6 (lOYOS)
E-4 (3 Years
of Service)
22)with One
38)with Two
Child
Children
Total Estimated Government-Provided
Direct Benefits $5,342,372 $3,651,453 $4,249,43423
(Immediate + Recurring Payments)
Table 2: Notional Estimates of Monthly DoD and VA Disability Benefits for a Member
Permanently Injured on Active Duty- Fiscal Year 2021 Values
(a) (b) (c) (d)

0-3 (Over E-6 (Over8) 0-3 (Over 8), E-6 (Over 8)
8) Age 30, Age 26, Age30 Age 26,
Married Married Married Married
Type of Male with Female with Male with Female with
Description
Payment Two Two Two Two Children
Children Children Children with 50%
with with 100% with 50% Disability
100% Disability Disability
Disability
Monthly Monthly Monthly Monthly
DoD Disability Disability retired pay
Retired Pay under Chapter 61, Title
Calculated 10, U.S.C., is determined
Based on by multiplying the
Disability disability percentage
$4,542 $2,519 $3,028 $1,679
Percentage (maximum 75 percent) by
(Before VA the retired pay base, which
Offset) is the average of the
highest 36 months of pay
that member (received. 24
Retired Pay A disability retiree has the
Calculated option ofchoosing to have
Based on retired pay calculated
Years of based on the disability
Service percentage (A) or based $1,211 $671 $1,211 $671
on longevity ofservice
(B). In most cases, the
disability percentage
results in a ,zreater
ER17JN21.003</GPH>
ER17JN21.002</GPH>
(a) (b) (c) (d)

8) Age 30, Age 26, Age30 Age 26,
Description
Disability
amount ofretired pay.
Longevity retired pay is
calculated by multiplying
years ofservice by the
average of the highest 36
months ofpay by the
applicable retirement
program multiplier. 25
VA Disability A tax-free monetary

Compensation benefit paid to veterans
with disabilities that are
the result of a disease or
injury incurred or
aggravated during active
military service. The $3,492 $3,492 $1,086 $1,086
benefit amount is
graduated according to the
degree of the disability on
a scale from l Opercent to
100 percent (in increments
of 10 percent). 26
DoD Disability A retiree must waive a
Retired Pay portion of his or her gross
(After VA DoD retired pay, dollar for
Offset) dollar, by the amount of $1,049 $0 $1,941 $592
his or her VA Disability
Compensation pay
Total Monthly VA Disability

DoD and VA Compensation+ DoD
$4,541 $3,492 $3,027 $1,678
Compensation Disability Retired Pay
After VA Offset.
Annual Annual Annual Annual
AnnualDoD Total Monthly DoD and
and VA VA Compensation x 12
$54,492 $41,904 $36,324 $20,136
Compensation months
ER17JN21.004</GPH>
(a) (b) (c) (d)

8) Age 30, Age 26, Age30 Age 26,
Description
Disability
Lifetime DoD Annual total multiplied by
and VA the number of years of
Compensation projected life. The life
After expectation for a male 30-
Disability year-old retired officer is
Retirement 54.5 additional years. The
life expectation for a
female 26-year-old retired
enlisted member is 56.5
additional years.
Amounts shown are in $2,969,814 $2,367,576 $1,979,658 $1,137,684
2020 dollars without
taking into account annual
cost-of-living adjustments
(COLA) (i.e., the present
value). The current
COLA estimate used by
the DoD Board of
Actuaries for calculating
future military retired pay
is 2.75 percent per year.
******************************************************************************
BILLING CODE 5001–06–C
the offset amount of $1.1 million. We percent disability rating, the current
We estimate that 7 claims per year used the notional example in Table 2(d), value of her lifetime compensation
would have damages that would exceed the lowest of the estimates in the would be $1,142,430. In addition to the
notional examples, as the basis for the $1,142,430 paid, benefits include
19 In these tables, ‘‘O–5’’ refers to an officer grade; $1.1 million offset. For the Table 2(b) medical care for the retired Service
‘‘E–4’’ to an enlisted grade. example of the married enlisted member member and her family. All these
20 Amount shown is annual. The spouse SBP
with two children in the grade of E–6 amounts would offset any damages
annuity is 55% of what retired pay would have who is medically retired with a 50 award.
been had the member retired with a full disability
retirement on the date of his or her death. SBP is 24 For simplicity of calculation, each member is
We then estimated the number of
adjusted annually for cost-of-living. The amount claims likely to exceed $1.1 million
reflected is for 2020 and assumes the spouse assumed to have 12 months of service ‘‘over 8
receives the full amount of SBP. SBP is subject to
years’’ and 24 months of service ‘‘over 6 years’’ in using claims data from non-Service
the same paygrade they currently hold, with a member claims under the FTCA or
offset if the spouse also receives DIC (only for the
retirement date of December 31, 2019. Prior to
portion of DIC payable to the spouse. If SBP is paid
retirement, each member was covered under the
MCA. In 2019 and 2020, the Military
to the children instead of the spouse, there is no High-3 retirement program. Departments had 14 claims from retirees
offset but the annuity ends when all children reach 25 For members who entered service prior to or dependents under the FTCA or MCA
the age of majority).
21 Basic Monthly Rate for 2020 is $1,340.14 plus
January 1, 2018, the applicable multiplier is 2.5 with damages that exceeded $1.1
percent unless the member elected to opt into the million, whether through settlement or
$332.00 per child age 18 or younger. $16,081 is Blended Retirement System or elected the Career
payable as DIC for the spouse which is offset against Status Bonus and converted to the REDUX an adverse court judgment. The average
SBP. retirement program. For these examples, all amount payable for these 14 claims over
22 SSIA is only received if SBP is reduced by the
members are assumed to have remained under the 2 years was approximately $2.7 million.
amount of DIC. If children receive SBP in full while legacy ‘‘High-3’’ retirement program with a 2.5 In one year, therefore, we estimate that
the spouse receives DIC, no SSIA is paid. percent multiplier.
23 The total payout for the spouse of the E–4 is 26 Rates for veteran + spouse + child + additional 7 claims by Service members would go
higher than that for the E–6 because the spouse is child at https://www.benefits.va.gov/ forward that exceed the $1.1 million
threshold for payable damages.
ER17JN21.005</GPH>
7 years younger, but both live until age 87. COMPENSATION/resources_comp01.asp#BM05.
Assuming 7 claims per year going DoD may issue the regulations the This interim final rule will not have a
forward exceeding $1.1 million, and statute requires ‘‘by prescribing an substantial effect on State and local
average damages of $1.6 million (the interim final rule.’’ The law also governments.
difference between the average amount requires DoD to consider public
List of Subjects in 32 CFR Part 45
of $2.7 million paid per claim in the comments and issue a final rule within
non-Active Duty claims and the one year after issuing an interim final Medical, Malpractice, Claims,
estimated $1.1 million in offsets per rule. The new law became effective Uniformed Services.
Service member claim), the additional January 1, 2020, and Congress desired ■ Accordingly 32 CFR part 45 is added
payments made by the U.S. because of expeditious adjudication of claims to read as follows:
section 731are estimated to be $11.2 arising from alleged instances of
million per year. Of this, the first medical malpractice dating back to PART 45—MEDICAL MALPRACTICE
$100,000 for each claim would be paid 2017. For this reason, there is good CLAIMS BY MEMBERS OF THE
by DoD and the remainder paid by the cause for finding, consistent with 5 UNIFORMED SERVICES
Treasury Department, for an estimated U.S.C. 553(b)(B), that prior notice and
total of $0.7 million to be paid by DoD Sec.
public comment are impracticable, 45.1 Purpose of this part.
based on 7 claims and $1.05 million to unnecessary, or contrary to the public 45.2 Claims payable and not payable in
be paid by the Treasury Department. interest. general.
As the tables above illustrate, 45.3 Authorized claimants.
Government paid benefits would not be h. Public Law 96–354, ‘‘Regulatory
45.4 Filing a claim.
a factor, as this claims process would Flexibility Act’’ (5 U.S.C. 601) 45.5 Elements of payable claim: facilities
have no impact on what the benefits This interim final rule is not subject and providers.
Service member is already receiving, to the Regulatory Flexibility Act (5 45.6 Element of payable claim: negligent or
has received, or is entitled to receive in U.S.C. 601) because it is not a notice of wrongful act or omission.
the future based on his or her injuries. proposed rulemaking under 5 U.S.C. 45.7 Element of payable claim: proximate
Total transfers from the U.S. cause.
601(2). 45.8 Calculation of damages: disability
government to claimants are estimated
to be $11.2 million per year. i. Assistance for Small Entities rating.
45.9 Calculation of damages: economic
f. Benefits This interim final rule does not damages.
impose requirements on small entities. 45.10 Calculation of damages: non-
Absent the claims process established economic damages.
by section 731, Service members would j. Congressional Review Act
45.11 Calculation of damages: offsets for
not have the opportunity for potential Pursuant to the Congressional Review DoD and VA Government compensation.
monetary payments above the amounts Act (5 U.S.C. 801 et seq.), the Office of 45.12 Initial and Final Determinations.
they currently receive through current Information and Regulatory Affairs 45.13 Appeals.
DoD and VA benefits. In addition to designated this interim final rule as not 45.14 Final and conclusive resolution.
providing an additional potential a major rule, as defined by 5 U.S.C. 45.15 Other claims procedures and
compensation remedy, the claims administrative matters.
804(2).
process reinforces DoD Clinical Quality Authority: 10 U.S.C. 2733a.
Management Program procedures for k. Sec. 202, Public Law 104–4,
appropriate accountability of DoD ‘‘Unfunded Mandates Reform Act’’ § 45.1 Purpose of this part.
health care providers. NPDB reporting Section 202 of the Unfunded (a) In general. The purpose of this part
includes cases where DoD Mandates Reform Act of 1995 (UMRA) is to establish the rules and procedures
compensation is paid through the (2 U.S.C. 1532) requires agencies to for members of the uniformed services
Disability Evaluation System or survivor assess anticipated costs and benefits or their representatives to file claims for
benefits attributable to medical before issuing any rule whose mandates compensation for personal injury or
malpractice by a DoD health care require non-Federal spending in any death caused by the medical
provider and now, under this part, paid one year of $100 million in 1995 dollars, malpractice of a Department of Defense
malpractice claims. Reports to the NPDB updated annually for inflation. This (DoD) health care provider. Claims
are accompanied by reports to State interim final rule will not mandate any under this part may be settled and paid
licensing boards and certifying agencies requirements for State, local, or tribal by DoD under the Military Claims Act,
of the health care providers involved. governments, nor affect private sector Title 10, United States Code, Chapter
The claims process further provides an costs. 163, specifically section 2733a of Title
opportunity for DoD to identify 10 (hereinafter 10 U.S.C. 2733a, section
opportunities for improvement in in the l. Public Law 96–511, ‘‘Paperwork 2733a, or the statute), as added to the
delivery of healthcare, potentially Reduction Act’’ (44 U.S.C. Chapter 35) Military Claims Act by section 731 of
preventing harm to others based upon It has been determined that 32 CFR the National Defense Authorization Act
measures taken by DoD as a result of a part 45 does not impose new reporting for Fiscal Year 2020 (Pub. L. 116–92;
claim even if the claim does not result or recordkeeping requirements under 133 Stat. 1457). Claims are adjudicated
in the payment of monetary damages. the Paperwork Reduction Act of 1995. under an administrative process. This
Finally, this process is only applicable administrative process follows a set of
m. Executive Order 13132, ‘‘Federalism’’ rules and procedures set forth in this
in certain cases of medical malpractice.
Executive Order 13132 establishes part. These rules and procedures are
g. Interim Final Rule Justification certain requirements that an agency based primarily on a number of detailed
This rule is being issued as an interim must meet when it promulgates a provisions in the statute.
final rule based on explicit statutory proposed rule (and subsequent final (b) Relationship to military and
authorization and clear Congressional rule) that imposes substantial direct veterans’ compensation programs.
intent. Specifically, 10 U.S.C. requirement costs on State and local Federal law provides a comprehensive
2733a(f)(3) provides that in order ‘‘to governments, preempts State law, or system of compensation for military
implement expeditiously’’ the new law otherwise has Federalism implications. members and their families in cases of
death or disability incurred in military of the uniformed services may engage amount that may be paid under this
service. This system applies to all the Healthcare Resolutions Program to part, consistent with section 2733a(c)(2),
causes of death or disability incurred in address non-monetary aspects of his or there is no additional amount permitted
service, whether due to combat injuries, her belief that he or she has been for attorneys’ fees or expenses
training mishaps, motor vehicle harmed by medical malpractice by a associated with filing a claim or
accidents, naturally occurring illnesses, DoD health care provider. Because it is participating in any process relating to
household events, with limited not involved in claims or legal the adjudication of the claim. The
exceptions (e.g., when the member is proceedings, the Healthcare Resolutions adjudication of claims under this part is
absent without leave or the injury is due Program disengages when a claim is not an adversarial proceeding and there
to the member’s intentional misconduct filed by a service member or his or her is no prevailing party to be awarded
or willful negligence). This representative. costs.
comprehensive compensation system (e) Claims adjudication based on
applies to cases of personal injury or § 45.2 Claims payable and not payable in national standards. As required by the
general. statute (section 2733a(f)(2)(B)), claims
death caused by medical malpractice
incurred in service as it does to all other (a) In general. This section sets forth are adjudicated based on national
causes. This part provides for the a number of terms and conditions standards consistent with generally
possibility of separate compensation in included in the statute (10 U.S.C. 2733a) accepted standards used in a majority of
certain cases of medical malpractice but that describe claims that are payable States in adjudicating claims under the
in no other type of case. A medical and not payable. Some of these terms FTCA. The determination of the
malpractice claim under this part will and conditions are discussed in more applicable law is without regard to the
have no effect on any other detail in later sections of this part. place of occurrence of the alleged
compensation the member or family is (b) Claim not otherwise payable. As medical malpractice giving rise to the
entitled to under the comprehensive required by the statute (section claim or the military or executive
compensation system applicable to all 2733a(b)(5)), a claim under this Part department or service of the member of
members. However, a claimant under may only be paid if it is not allowed to the uniformed services. Foreign law has
this part does not receive duplicate be settled and paid under any other no role in the case of claims arising in
compensation for the same harm. Thus, provision of law. This limitation foreign countries. The legal standards
with some limited exceptions, a provides that it cannot be a claim set forth in other sections of this part
potential malpractice damages award allowed under the Federal Tort Claims apply to determinations with respect to:
under this part is reduced or offset by Act (FTCA), 28 U.S.C. 1346 and Chapter (1) Whether an act or omission by a
the total value of the compensation the 171. Claims against the United States DoD health care provider in the context
claimant is expected to receive under filed by members of the uniformed of performing medical, dental, or related
the comprehensive compensation services or their representatives for health care functions was negligent or
system, whether or not the claimant personal injury or death incident to wrongful, considering the specific facts
ultimately receives such compensation, service are not allowed under the FTCA. and circumstances;
and the ultimate amount of a settlement These claims may be allowed under this (2) Whether the personal injury or
under this part will be the amount, if Part if they meet the other applicable death of the member was proximately
any, that a potential malpractice terms and conditions. caused by a negligent or wrongful act or
(c) Time period for filing claims. (1) omission of a DoD health care provider
damages award determined under the
The statute (section 2733a(b)(4)) in the context of performing medical,
terms and conditions of this part
requires that a claim must be received dental, or related health care functions,
exceeds the value of all the
by DoD in writing within two years after considering the specific facts and
compensation and benefits the claimant
the claim accrues. For mailed claims, circumstances;
is otherwise expected to receive from
timeliness of receipt will be determined (3) Requirements relating to proof of
DoD or the Department of Veterans
by the postmark. duty, breach of duty, and causation
Affairs (VA).
(2) There is a special rule for claims resulting in compensable injury or loss,
(c) Relationship to Healthcare filed during calendar year 2020. Such subject to such exclusions as may be
Resolutions Program. The medical claims must be presented to DoD in established by this Part; and
malpractice claims process under this writing within three years after the (4) Calculation of damages that may
part is separate from the Military Health claim accrues. The tolling provisions be paid.
System Healthcare Resolutions Program. under the Servicemembers Civil Relief (f) Certain other claims not payable.
The Healthcare Resolutions Program, Act, 50 U.S.C. 3901–4043, are not The generally accepted legal standards
under Defense Health Agency applicable under this section. under FTCA that are required to be
Procedural Instruction 6025.17, is an (3) For purposes of applying the time reflected in the adjudication of claims
independent, neutral, and confidential limit for filing a claim, a claim accrues under this Part include certain
system that promotes full disclosure of as of the latter of: exclusions that are part of FTCA law.
factual information—including (i) The date of the act or omission by (1) The due care and discretionary
information involving adverse events a DoD health care provider that is the function exceptions apply to claims
and outcomes—and mediation of basis of the malpractice claim; or under this part.
clinical conflicts. The program is part of (ii) The date on which the claimant (i) The due care and discretionary
the Military Health System’s knew, or with the exercise of reasonable function exceptions, 28 U.S.C. 2680(a),
commitment to transparency, which diligence should have known, of the bar any claim based upon an act or
also includes a patient’s right to be injury and that malpractice was its omission of a DoD health care provider,
heard as part of any quality assurance possible cause. exercising due care, in the execution of
review of care provided. The Healthcare (4) State statutes of limitation or a statute or regulation or based upon the
Resolutions Program is not involved in repose are inapplicable. exercise or performance of any
legal proceedings, compensation (d) No claim for attorney’s fees or discretionary function or duty on the
matters, or the adjudication of claims expenses in addition to statutorily part of DoD or a DoD health care
under this part. However, any member allowed amount. In calculating the provider.
(ii) The due care exception applies to member of the uniformed services the theory of liability and/or breach of
any DoD health care provider’s act, if includes a cadet or midshipman from the applicable standard of care);
carried out with due care, or omission, the military academies. It does not (2) A demand for a specified dollar
if omitted with due care, in the include an applicant to join a uniformed amount;
execution of a statute or regulation. The service or a delayed entry program (3) If the claim is filed by an attorney,
due care exception applies whether or recruit who has not been accessed into an affidavit from the claimant affirming
not the statute or regulation is valid. active duty. the attorney’s authority to file the claim
(iii) The discretionary function (1) As provided in section 2733a(b)(1), on behalf of the claimant;
exception applies to the exercise or the claim must be filed by the member (4) If the claim is filed by an
performance or the failure to exercise or of the uniformed services who is the authorized representative, an affidavit
perform any discretionary function. The subject of the medical malpractice claim from the representative affirming his/
discretionary function exception applies or by an authorized representative on her authority to file on behalf of the
whether or not the discretion involved behalf of such member who is deceased claimant;
was abused. It applies to any DoD health or otherwise unable to file the claim due (5) If the claimant is not represented
care provider’s act or omission that is a to incapacitation. by an attorney, unless the alleged
permissible exercise of discretion under (2) In some circumstances, a claim medical malpractice is within the
the applicable statutes, regulations, or otherwise payable under this part may general knowledge and experience of
directive and, by its nature, is be filed by or on behalf of a reserve ordinary laypersons, an affidavit from
susceptible to policy analysis. The component member. As provided in the claimant affirming that the claimant
discretionary function exception applies section 2733a(i)(3), those circumstances consulted with a health care
to DoD policy decisions regarding are that the claim is in connection with professional who opined that a DoD
clinical practice, patient triage, force personal injury or death that occurred health care provider breached the
health protection, medical readiness, while the member was in a Federal duty standard of care that caused the alleged
health promotion, disease prevention, status. This circumstance includes harm. Alternatively, if the claimant is
medical screening, health assessment, personal injury, death, or negligent represented by an attorney, unless the
resource management, hiring and diagnosis resulting from a negligent or alleged medical malpractice is within
retaining employees, selection of wrongful act or omission that occurred the general knowledge and experience
contractors, military standards, fitness while the member was in a Federal duty of ordinary laypersons, the claimant
for duty, duty limitations, and health status. In the case of a member of the must submit an affidavit from the
information management, among other National Guard of the United States, a attorney affirming that the attorney
matters affecting or involving the period of Federal duty status may be consulted with a health care
provision of health care services. under Title 10, U.S. Code, or, based on professional who opined that a DoD
(2) The quarantine exception applies 10 U.S.C. 12602, duty under title 32, health care provider breached the
to claims under this part. This U.S. Code. Other duty under State standard of care that caused the alleged
exception, consistent with 28 U.S.C. control is not covered. harm. The requirement in this
2680(f), bars any claim for damages (b) Third party claims not allowed. paragraph does not apply to claims filed
caused by the imposition or The statute only authorizes claims by prior to the publication of this Interim
establishment of a quarantine by any members of the uniformed services. Final Rule.
agency of the U.S. Government. Thus, the regulation does not permit (c) Additional information to file in
(3) The combatant activities exception derivative claims or other claims from support of claim. In the investigation
applies to claims under this part. This third parties alleging a separate injury as and adjudication of a claim, DoD will
exception, consistent with 28 U.S.C. a result of harm to a member of the access pertinent DoD records and
2680(j), bars any claim arising out of the uniformed services. This prohibition information systems regarding the
combatant activities of the military or includes claims by family members or member in order to consider fully all
naval forces, or the Coast Guard, in time survivors arising out of the facts that have a bearing on the claim.
of war. circumstances of personal injury or This collection may include information
(4) The FTCA’s exclusions under 28
death of a member. in personnel and medical records, the
U.S.C. 2674 of interest prior to judgment
(c) Incident to service requirement. Defense Eligibility and Enrollment
and punitive damages apply to any
Under section 2733a(a), the member’s System (DEERS), reports of
claim under this part.
(5) Claims based on intentional or personal injury or death must be investigation, medical quality assurance
negligent infliction of emotional incident to service. An injury or death records, and other information. Upon
distress, other intentional torts, is incident to service if the medical care DoD’s request, a claimant must identify
wrongful death/life, strict liability, provided is based on the member’s any pertinent health care providers
products liability, informed consent, status under this section. outside of DoD, and provide a copy of
negligent credentialing, or joint and his or her medical records from each of
§ 45.4 Filing a claim. the identified health care providers,
severable liability theories are not
(a) In general. A member of a including a statement that the records
payable under this part.
(6) Breach of medical confidentiality uniformed service or, when applicable, are complete. A claimant must provide
is not actionable under this part. an authorized representative may file a medical release(s) upon DoD’s request,
claim in writing. Any written claim will enabling DoD to obtain medical records
§ 45.3 Authorized claimants. suffice as long as it is meets the from these health care providers.
(a) In general. This section describes requirements below and is signed by the Claimants may submit any other
who may file a claim under this part. A claimant or authorized representative. relevant information they believe
claim may be filed only by a member of (b) Contents of the claim. The filed supports their claim, such as
a uniformed service or an authorized claim must include the following: information regarding the medical care
representative on behalf of a member (1) The factual basis for the claim, involved, the acts or omissions the
who is deceased or otherwise unable to including identification of the conduct claimant believes constitute
file the claim due to incapacitation. A allegedly constituting malpractice (e.g., malpractice, medical opinions from
non-DoD providers, and evidence of (c) DoD health care provider. As claimant may present evidence to
pain and suffering or other harm. provided in section 2733a(i)(2), a DoD support what the claimant believes
(d) Substantiating the claim. Under health care provider is a member of the demonstrates the failure of one or more
section 2733a(b)(6), DoD is allowed to uniformed services, DoD civilian DoD health care providers to meet the
pay a claim only if it is substantiated. employee, or personal services standard of care. That evidence may be
The claimant has the burden to contractor of the Department (under 10 based on the medical records of the
substantiate the claim by a U.S.C. 1091) authorized by DoD to patient involved and other documentary
preponderance of the evidence. Upon provide health care services. A non- evidence of the acts or omissions of
receipt of a claim, DoD may require that personal services contractor or a health care providers involved,
the claimant provide additional volunteer working in an MTF is not a including expert reports.
information DoD believes is necessary DoD health care provider for purposes (2) Evidence of an apology by a health
for adjudication of the claim, including of a payable claim under this part. care provider or any other DoD or
the submission of an expert opinion at (d) Scope of employment. As Military Department personnel, such as
the claimant’s expense. DoD may provided in section 2733a(b)(2), for a hospital directors or commanders, to or
determine an expert opinion is not claim to be payable under this part, the regarding a patient will not be
necessary when negligence is within the DoD health care provider whose considered evidence of medical
general knowledge and experience of negligent or wrongful act or omission is malpractice. Providers often apologize
ordinary laypersons, such as when a the basis of a claim must be acting for unexpected or adverse outcomes
foreign object is unintentionally left in within the scope of employment, independent of whether the provider’s
the body or an operation occurred on meaning that the provider was acting in acts or omissions met the standard of
the wrong body part. furtherance of his or her duties in the care.
(e) No discovery. There is no MTF. For personal services contractors, (f) Information DoD will consider in
discovery process for adjudication of ‘‘scope of employment’’ means the assessing whether there was a negligent
claims under this Part. However, contractor was acting within the scope or wrongful act or omission. (1) In
claimants may obtain copies of records of his or her duties. addition to the information submitted
in DoD’s possession that are part of their by the claimant, DoD may consider all
personnel and medical records in § 45.6 Element of payable claim: negligent
or wrongful act or omission. relevant information in DoD records and
accordance with DoD Instruction information systems or otherwise
5400.11, ‘‘DoD Privacy and Civil (a) In general. To establish the
element of a negligent or wrongful act available to DoD, including information
Liberties Programs’’; DoD Instruction prepared by or on behalf of DoD in
6025.18, ‘‘Health Insurance Portability or omission, a member of a uniformed
service (‘‘claimant’’) allegedly harmed connection with adjudication of the
and Accountability Act (HIPAA) Privacy claim.
Rule Compliance in DoD Health Care incident to service by medical
malpractice must prove by a (2) DoD will consider medical quality
Programs,’’ and supplemental DoD
preponderance of the evidence that one assurance records relevant to the health
issuances to those Instructions.
or more DoD health care providers in a care provided to the patient. DoD’s
Claimants are not entitled to attorney
covered MTF acting within the scope of Clinical Quality Management Program
work product, attorney client privileged
employment had a professional duty to features reviews of many circumstances
communications, material that is part of
the patient involved and by act or of clinical care. Results of any such
a DoD Quality Assurance Program
omission breached that duty which reviews of the care involved in the
protected under 10 U.S.C. 1102,
proximately caused the injury or death. claim that occurred before or after the
predecisional material, or other
(b) Standard of care. The professional claim was filed may be considered by
privileged information.
duty referred to in paragraph (a) of this DoD in the adjudication of the claim. As
§ 45.5 Elements of payable claim: facilities section is a duty to exercise the same required by 10 U.S.C. 1102, DoD
and providers. degree of skill, care, and knowledge medical quality assurance records are
(a) In general. This section describes ordinarily expected of providers in the confidential. While such records may be
some of the necessary elements of a same field or specialty in a comparable used by DoD, any information contained
payable claim. The health care involved clinical setting. The standard of care is in or derived from such records may not
must occur in a covered military determined based on generally be disclosed to the claimant.
medical treatment facility (MTF) and be recognized national standards, not on
§ 45.7 Element of payable claim: proximate
provided by a DoD health care provider the standards of a particular region, cause.
acting within the scope of employment. State or locality. However, standard of
(b) Covered MTF. (1) As provided in care in the military context may be (a) In general. (1) In a case otherwise
section 2733a(b)(3) and (i)(1), the impacted by the particular setting and payable under this part, a claimant must
alleged act or omission constituting the availability of resources in that prove by a preponderance of evidence
medical malpractice must have occurred setting. that a negligent or wrongful act or
in a covered MTF. For the purposes of (c) Breach of the standard of care. A omission by one or more DoD health
this regulation, an MTF is a medical breach referred to in paragraph (a) care providers was the proximate cause
center, inpatient hospital, or ambulatory occurs if the health care provider or of the harm suffered by the member.
care center, as those facilities are providers by act or omission did not (2) Under section 2733a(c)(1), DoD is
described in 10 U.S.C. 1073d. Fixed meet the standard of care. liable for only the portion of
dental clinics are also included. (d) Presenting evidence of the compensable injury, loss, or damages
(2) A claim may not be based on standard of care. A claimant may attributable to the medical malpractice
health care services provided by DoD present evidence to support what the of a DoD health care provider. To the
health care providers in any other claimant believes is the standard of care extent other causes contributed to the
location, such as in the field, battalion relevant to the care involved in the personal injury or death of the member,
aid stations, ships, planes, deployed claim. whether pre-existing, concurrent, or
settings, or in any other place that is not (e) Presenting evidence of a failure to subsequent, the potential amount of
a covered MTF. meet the standard of care. (1) A compensation under this regulation will
be reduced by that proportion of the member in a claim under this part, DoD award. The claimant has the burden to
alternative cause(s). will use the disability rating established prove the amount of economic damages
(b) Comparative negligence. A rule of in the DoD Disability Evaluation System by a preponderance of evidence.
modified comparative negligence will under DoD Instruction 1332.18 1 or Estimates of future losses must be
apply to claims under this part. If a otherwise established by the discounted to present value.
claimant was contributorily negligent in Department of Veterans Affairs (VA) to (b) Elements of economic damages in
relation to the health care provided, assess the extent of the harm alleged to personal injury cases. Elements of
damages will be reduced by the have been caused by medical economic damage are limited to the
proportion of fault assigned to the malpractice. This rating is stated as a following:
Service member. If the claimant’s own disability percentage under the VA (1) Past expenses, including medical,
negligence constituted more than 50% Schedule for Rating Disabilities hospital, and related expenses actually
of the fault, the claim is not payable. (VASRD) under 38 CFR part 4 or a incurred. These expenses do not include
(c) Loss of chance or failure to successor provision. Under 10 U.S.C. health care services provided or paid for
diagnose. A claimant may recover for 1216a, DoD is required to use the by DoD or VA.
loss of chance for a more favorable VASRD for assessing the degree of (2) Future medical, hospital, and
clinical outcome in the diagnosis and disability of a member under the related expenses. These expenses do not
treatment of his or her illness or injury. Disability Evaluation System. DoD will include health care goods and services
The claimant must prove by a use it for purposes of this part as well. for which the member is entitled to
preponderance of the evidence that one A VASRD-based disability percentage receive from, or be reimbursed for by,
or more DoD health care providers in a represents the Government’s estimate of DoD (including TRICARE) or VA. Goods
covered MTF acting within the scope of the lost earning capacity attributable to and services provided or paid for by
employment had a professional duty to an illness or injury incurred during DoD or VA are deemed sufficient to
the claimant and by act or omission military service. A Service member meet the claimant’s needs for that
breached that duty and proximately medically separated or retired through particular type of good or service.
caused harm. In proving that the the Disability Evaluation System may (3) Past lost earnings unrelated to
claimant suffered harm, the claimant receive distinct DoD and VA disability compensation as a member of the
must prove that the lost chance for a ratings. DoD will consider disability uniformed services. Appropriate
better outcome or the failure to diagnose ratings, to the extent DoD deems documentation is required.
a condition is attributable to the pertinent, for other purposes relating to (4) Loss of earning capacity, after
provider or providers. The claimant calculating damages, such as calculating deducting for the claimant’s personal
must prove a substantial loss as opposed loss of earning capacity and non- consumption from the date of injury
to a theoretical or de minimis loss. The economic damages. causing death until expiration of the
portion of harm attributable to the (b) Disability rating procedures. (1) If claimant’s work-life expectancy, as
breach of duty will be the percentage of a claimant disagrees with the disability substantiated by appropriate
chance lost in proportion to the overall rating received in the DoD or VA documentation. In addition, loss of
clinical outcome. Damages will be disability evaluation or claims retirement benefits is compensable and
calculated based on this portion of processes, the member must pursue the similarly discounted after appropriate
harm. appeal opportunities available within deductions. Estimates must be
(d) Information DoD will consider in the DoD and/or VA to change the discounted to present value.
assessing proximate cause. (1) In member’s disability rating. (5) Compensation when the claimant
addition to the information submitted (2) In any case in which a member has can no longer perform essential
by the claimant, DoD may consider all filed a claim under this part and also household services on his or her own
relevant information in DoD records or has a disability determination pending behalf, including activities of daily
information systems or otherwise under DoD or VA disability evaluation living. This compensation does not
available to DoD, including information or claims processes applicable to include goods and services the member
prepared by or on behalf of DoD in determinations or appeals, DoD may, in is entitled to receive from, or be
connection with adjudication of the its discretion, hold in abeyance the reimbursed for by, DoD or VA. Goods
claim. claim under this part pending the and services provided or paid for by
(2) DoD will consider medical quality outcome of the disability evaluation or DoD or VA are deemed sufficient to
assurance records relevant to the health claims process. DoD will notify the meet the claimant’s needs for that
care provided to the patient. DoD’s claimant that his or her claim is being particular type of good or service.
Clinical Quality Management Program held in abeyance. (c) Information DoD will consider in
features reviews of many circumstances (3) In any case in which a member has calculating economic damages. In
of clinical care. Results of any such not yet received a DoD or VA disability addition to the information submitted
reviews of the care involved in the evaluation because the member is by the claimant, DoD may consider all
claim that occurred before or after the retained on active duty, DoD will use relevant information in DoD records or
claim was filed may be considered by the VASRD as the standard for assessing information systems or otherwise
DoD in the adjudication of the claim. As the degree of disability of the member available to DoD, including assessments
required by 10 U.S.C. 1102, DoD relevant to the member’s claim under from appropriate documentary sources
medical quality assurance records are this part. and experts available to DoD.
confidential. While such records may be
§ 45.10 Calculation of damages: non-
used by DoD, any information contained § 45.9 Calculation of damages: economic
economic damages.
in or derived from such records may not damages.
be disclosed to the claimant. (a) In general. Non-economic damages

(a) In general. Economic damages are
are one component of a potential
one component of a potential damages
§ 45.8 Calculation of damages: disability damages award. The claimant has the
rating. 1 Available at https://www.esd.whs.mil/Portals/ burden of proof on the amount of non-
(a) In general. For certain purposes 54/Documents/DD/issuances/dodi/ economic damages by a preponderance
relating to calculating damages for a 133218p.pdf?ver=2018-05-24-133105-050. of evidence.
(b) Elements of non-economic whether or not the claimant has taken caused by the alleged medical
damages. Elements of non-economic steps to obtain the payment or benefit or malpractice.
damage are limited to the following: ultimately receives such payment or (3) Disability severance pay in the
(1) Past and future conscious pain benefit. A claimant may present case of non-retirement disability
and suffering by the claimant. This evidence that he or she is not eligible for separation caused by the alleged
element is physical discomfort as well a payment or benefit to rebut the medical malpractice.
as mental and emotional trauma or presumption. (4) Incapacitation pay.
distress. Loss of enjoyment of life is (c) Information considered. In (5) Involuntary and voluntary
compensable. The inability to perform determining offsets under this section, separation pays and incentives.
daily activities that one performed prior DoD will consider all data available in (6) Death gratuity.
to injury, such as recreational activities, DoD records or information systems, (7) Housing allowance continuation.
is included in this element. DoD may other U.S. Government records systems, (8) Survivor Benefit Plan.
request an interview of or statement and other information available to DoD. (9) VA disability compensation, to
from the member or other person with This data may include information on include Special Monthly Compensation,
primary knowledge of the claimant. military pay and allowances, Disability attributable to the disability resulting
(2) Physical disfigurement. This Evaluation System outcomes, VA from the malpractice.
element is impairment resulting from an disability claims, marital status, number (10) VA Dependency and Indemnity
injury to a member that causes and ages of dependents, survivor Compensation, attributable to the
diminishment of beauty or symmetry of benefits, and other information. Access disability resulting from the
appearance rendering the member to all such information will be in malpractice.
unsightly, misshapen, imperfect, or accordance with the Privacy Act, 5 (11) Special Survivor Indemnity
deformed. DoD may require a medical U.S.C. 552a, and applicable Allowance.
statement and photographs, implementing regulations. (12) Special Compensation for
documenting the claimant’s condition. (d) Present value of future payments Assistance with Activities of Daily
(c) Cap on non-economic damages. In and benefits. In determining offsets Living.
any claim under this part, total non- under this section, DoD will estimate (13) Program of Comprehensive
economic damages may not exceed a the present value of future payments Assistance for Family Caregivers.
cap amount. The current cap amount is and benefits. Many such payments and (14) Fry Scholarship.
$500,000. Updates to cap amounts in benefits in cases of disability or death (15) TRICARE coverage, including
subsequent years will be published are lifetime benefits for members or TRICARE-for-Life, for a disability
periodically, consistent with changes in survivors. With respect to any lifetime retiree, family, or survivors. Future
prevailing amounts in the majority of payments or benefits that may terminate TRICARE coverage is part of the
the States with non-economic damages upon the remarriage of a surviving Government’s compensation package for
caps. spouse, DoD will not assume a a disability retiree or survivor.
(d) Information DoD will consider in remarriage. Estimates will be based on (g) Payments and benefits that are not
calculating non-economic damages. In actuarial information provided by the offsets. Potential awards under this Part
addition to the information submitted Chief Actuary, DoD Office of the are not offset by the present value of the
by the claimant, DoD may consider all Actuary, taking into consideration following payments and benefits.
relevant information in DoD records or methods and assumptions approved by (1) Servicemembers Group Life
otherwise available to DoD, including the DoD Board of Actuaries and DoD Insurance.
assessments from appropriate Medicare-Eligible Retiree Health Care (2) Traumatic Servicemembers Group
documentary sources and experts Board of Actuaries, respectively, as of Life Insurance.
available to DoD. the recent actuarial valuation date. (3) Social Security disability benefits.
(e) Payment and benefit programs. (4) Social Security survivor benefits.
§ 45.11 Calculation of damages: offsets for The listings in this section of certain (5) Prior Government contributions to
DoD and VA Government compensation. programs that offset and do not offset a Thrift Savings Plan.
(a) In general. Total potential damages potential medical malpractice damages (5) Commissary, exchange, and
calculated under this Part, both awards are not all-inclusive and are morale, welfare, and recreation facility
economic and non-economic, are subject to adjustment as necessary to access.
reduced by offsetting most of the account for compensation otherwise (6) Value of legal assistance and other
compensation otherwise provided or provided by DoD or VA for the same services provided by DoD.
expected to be provided by DoD or VA harm that resulted from the medical (7) Medical care provided while in
for the same harm that is the subject of malpractice. Because compensation active service or in an active status prior
the medical malpractice claim. The programs are often changed by to death, retirement, or separation.
general rule is that prospective medical Congress, Federal agencies, or judicial
malpractice damage awards are offset by decisions, DoD will annually review § 45.12 Initial and Final Determinations.
DoD or VA payments and benefits that relevant programs and take account of (a) Denial of claim—deficient filing. If
are primarily funded by Government any such changes for purposes of a claim does not contain the information
appropriations. However, there is no applying the rules of this section to the required by § 45.4(b), DoD will issue an
offset for U.S. Government payments adjudication of claims under this part. Initial Determination stating that DoD
and benefits that are substantially (f) Payments and benefits that are will issue a Final Determination
funded by the military member. offsets. Potential damage awards under denying the claim unless the deficiency
(b) Eligibility for payments and this part are offset by the present value is cured.
benefits. In determining the offsets that of the following payments and benefits: (1) DoD will provide the claimant 30
are applied to a medical malpractice (1) Pay and allowances while a calendar days following receipt of the
damages award under this part, DoD member remains on active duty or in an Initial Determination to cure the
presumes that a claimant will receive all active status. deficiency, unless an extension of time
the payments and benefits for which the (2) Disability retired pay in the case is granted for good cause. The date of
claimant is expected to be eligible, of retirement due to the disability receipt of the Initial Determination will
be presumed to be five calendar days right to appeal if the claimant does not under appeal. Appeals are decided on a
after the date the Initial Determination agree with the Initial Determination. written record and decisions will be
was mailed or emailed, unless there is (4) The claimant may request approved by a majority of the members.
evidence to the contrary. reconsideration of the damages There is no adversarial proceeding and
(2) If the claimant does not timely calculation contained in an Initial no hearing. There is no opposing party.
cure the deficiency, DoD will issue a Determination if, within the time The Appeals Board may obtain
Final Determination denying the claim otherwise allowed to file an information or assessments from
for failure to cure the deficiency. A administrative appeal, the claimant appropriate sources, including from the
Final Determination issued under identifies an alleged clear error—a claimant, to assist in deciding the
paragraph (a) of this section may not be definite and firm conviction that a appeal. The Appeals Board is bound by
appealed. mistake has been committed—in the the provisions of this Part and will not
(b) Denial of claim—failure to state a damages calculation. DoD will review consider challenges to them.
claim. If a claim does not, based upon the alleged clear error and will issue an (c) Burden of proof. The claimant on
the information provided, state a claim Initial Determination on appeal has the burden of proof by a
cognizable under 10 U.S.C. 2733a or this Reconsideration either granting or preponderance of evidence that the
interim final rule, DoD will issue an denying reconsideration of the Initial claim is substantiated in the written
Initial Determination denying the claim. Determination and adjusting the record considered as a whole.
Such an Initial Determination may be damages calculation, if appropriate. The (d) Appeals Board decisions. (1) Every
appealed under the procedures in Initial Determination on claimant will be provided a written
§ 45.13. Reconsideration will include Final Determination on the claimant’s
(c) Denial of claim—absence of an information on the claimant’s right to appeal. The Final Determination may
expert report. Where applicable, if the appeal under the procedures in § 45.13. adopt by reference the Initial
claimant initially does not submit an Determination or revise the Initial
expert report in support of his or her § 45.13 Appeals.
Determination, as appropriate. If the
claim and DoD intends to deny the (a) In general. This section describes Final Determination revises the Initial
claim, DoD will issue an Initial the appeals process applicable to Initial Determination, DoD will provide a brief
Determination stating, without more, Determinations under this part, which explanation of the basis for the revisions
that DoD will issue a Final include Initial Determinations on to the extent practicable.
Determination denying the claim in the Reconsideration. With the exception of (2) An Appeals Board decision is final
absence of an expert report or manifest Initial Determinations issued under and conclusive. 10 U.S.C. 2735.
negligence. § 45.12(a), in any case in which the (3) The Appeals Board may reverse
(1) DoD will provide the claimant 90 claimant disagrees with an Initial the Initial Determination to grant or
calendar days following receipt of the Determination, the claimant has a right deny a claim and may adjust the
Initial Determination to submit an to file an administrative appeal. The settlement amount contained in the
expert report, unless an extension of claimant should explain why he or she Initial Determination either upwards or
time is granted for good cause. The date disagrees with the Initial Determination, downwards as appropriate.
of receipt of the Initial Determination but may not submit additional
will be presumed to be five calendar information in support of the claim § 45.14 Final and conclusive resolution.
days after the date the Initial unless requested to do so by DoD. An (a) Administrative adjudication final.
Determination was mailed or emailed, appeal must be received within 60 As provided in 10 U.S.C. 2735, the
unless there is evidence to the contrary. calendar days of the date of receipt by adjudication and settlement of a claim
(2) If the claimant does not timely the claimant/counsel of the Initial under this part is final and conclusive
submit an expert report, DoD will issue Determination, unless an extension of and not subject to review in any court.
a Final Determination denying the claim time is granted for good cause. The date Unlike the FTCA, the Military Claims
and will provide a brief explanation of of receipt of the Initial Determination Act, 10 U.S.C. chapter 163, which
the basis for the denial to the extent will be presumed to be five calendar provides the authority for this part, does
practicable. A Final Determination days after the date the Initial not give Federal courts jurisdiction over
issued under this paragraph (c) may not Determination was mailed or emailed, claims. Further, no claim under this Part
be appealed. unless there is evidence to the contrary. may be paid unless the amount tendered
(d) Initial Determination. (1) Upon If no timely appeal is received, DoD will is accepted by the claimant in full
consideration of the information issue a Final Determination. satisfaction.
provided by the claimant and relevant (b) Appeals Board. Appeals will be (b) Additional terms of settlement
information available to DoD, DoD will decided by an Appeals Board agreement. (1) Settlement agreements
issue the claimant a written Initial administratively supported by the under this part will incorporate the
Determination. Defense Health Agency. Although there requirement of section 2733a(g)(1) that
(2) The Initial Determination may be may be, in DoD’s discretion, multiple no attorney may charge, demand,
in the form of a certified letter and/or an offices that initially adjudicate claims receive, or collect for services rendered,
email. The Initial Determination may under this part (such as offices in the fees in excess of 20 percent of any claim
take the form of a grant of a claim and Military Departments), there is a single payment amount under this part.
an offer of a settlement or a denial of the DoD Appeals Board. The Appeals Board (2) Because settlement and payment
claim. Subject to applicable will consist of not fewer than three and of a claim under this part is under
confidentiality requirements, such as 10 no more than five DoD officials section 2733a(b)(5) conditional on the
U.S.C. 1102, privileged information, and designated by the Defense Health claim not being allowed to be settled
paragraph (a) of this section, DoD will Agency from that agency and/or the and paid under any other provision of
provide a brief explanation of the basis Military Departments who are law, a settlement agreement under this
for the Initial Determination to the experienced in medical malpractice part will include a provision that it bars
extent practicable. claims adjudication. Appeals Board any other claim against the United
(3) The Initial Determination will members must not have had any States or DoD health care providers
include information on the claimant’s previous role in the claims adjudication arising from the same set of facts.
§ 45.15 Other claims procedures and DEPARTMENT OF HOMELAND 165.939 and 5 U.S.C. 552(a). In addition
administrative matters. SECURITY to this notification of enforcement in the
(a) Payment of damages. In the event Federal Register, the Coast Guard will
damages are awarded, the claimant or Coast Guard provide the maritime community with
the claimant’s estate is entitled to advance notification of this enforcement
payment of those damages. 33 CFR Part 165 period via Broadcast Notice to Mariners
(b) Communication through counsel. or Local Notice to Mariners. If the
[Docket No. USCG–2021–0390]
If the claimant is represented by Captain of the Port Buffalo determines
counsel, all communications will be Safety Zones; Annual Event in the that the safety zone need not be
through the claimant’s counsel. Captain of the Port Buffalo Zone enforced for the full duration stated in
(c) Remedies for filing false claims or this notification she may use a
making false statements. Remedies AGENCY: Coast Guard, Department of Broadcast Notice to Mariners to grant
available to the United States for filing Homeland Security (DHS). general permission to enter the
false claims with Federal agencies or ACTION: Notice of enforcement of respective safety zone.
making false statements to Federal regulation.
agencies and officials are applicable to Lexia M. Littlejohn,
claims and statements made in SUMMARY: The Coast Guard will enforce Captain, U.S. Coast Guard, Captain of the
connection with claims under this part. a safety zone located in Federal Port Buffalo.
Applicable authorities include 31 U.S.C. regulations for a recurring marine event. [FR Doc. 2021–12840 Filed 6–16–21; 8:45 am]
3729 and 18 U.S.C. 1001. False claims This action is necessary and intended BILLING CODE 9110–04–P
and claims supported by false for the safety of life and property on
statements will be denied. navigable waters during these events.
(d) Reports to the Defense Health During each enforcement period, no DEPARTMENT OF HOMELAND
Agency. As provided in section person or vessel may enter the SECURITY
2733a(e), not later than 30 calendar days respective safety zone without the
after a Final Determination of medical permission of the Captain of the Port Coast Guard
malpractice or the payment of all or a Buffalo.
portion of a claim under this part, a 33 CFR Part 165
DATES: The regulations in 33 CFR
report documenting that determination 165.939, Table 165.939, entry (a)(1), will [Docket Number USCG–2021–0383]
is sent to the Director, Defense Health be enforced from 9:45 p.m. to 11:15 p.m.
Agency to be used for all necessary and on June 18, 2021. RIN 1625–AA00
appropriate purposes, including those FOR FURTHER INFORMATION CONTACT: If
actions undertaken as part of DoD’s Safety Zone; M/V ZHEN HUA 26
you have questions about this Transit; Everport Container Terminal,
Clinical Quality Management Program. notification of enforcement, call or
(e) Monitoring claims adjudications San Pedro, California
email LCDR William Fitzgerald, Chief of
under this part. The General Counsel of Waterways Management, U.S. Coast AGENCY: Coast Guard, Department of
the Defense Health Agency will monitor Guard Marine Safety Unit Cleveland; Homeland Security (DHS).
the performance of the claims telephone 216–937–0124, email ACTION: Temporary final rule.
adjudications structures and procedures william.j.fitzgerald@uscg.mil.
under this part, including accounting SUMMARY: The U.S. Coast Guard is
for the number of claims processed SUPPLEMENTARY INFORMATION: The Coast
establishing a temporary moving safety
under this part and the resolution of Guard will enforce the Safety Zones;
zone around the M/V ZHEN HUA 26
each claim and identifying means to Annual Events in the Captain of the Port
while it transits through the navigation
enhance the effectiveness of the claims Buffalo Zone listed in 33 CFR 165.939,
channel during its transit to Everport
adjudication process. Table 165.939, entry (a)(1), in
Container Terminal, Berth 227, in San
(f) Authority for actions under this Vermillion, OH, on all U.S. waters
Pedro, California. This safety zone is
part. To ensure consistency and within a 420 foot radius of the fireworks
necessary to protect personnel, vessels,
compliance with statutory requirements, launch site located at position 41°25′45″
and the marine environment from
supplementation of the procedures in N and 082°21′54″ W, (NAD 83) for the
hazards associated with the arms of
this part is not permitted without Festival of the Fish.
Pursuant to 33 CFR 165.23, entry into, three ship-to-shore gantry cranes which
approval in writing by the General will extend more than 200 feet out from
Counsel of the Department of Defense. transiting, or anchoring within the
safety zone during an enforcement the transiting vessel when the arms are
The General Counsel of the Department lowered, and from the vessel’s stability
of Defense, under DoD Directive period is prohibited unless authorized
by the Captain of the Port Buffalo or a condition due to an air draft greater than
5145.01, ‘‘General Counsel of the 300 feet when the cranes are in the up
Department of Defense,’’ may delegate designated representative. Those
seeking permission to enter the safety position. Unauthorized persons or
in writing authority for making Initial vessels are prohibited from entering
and Final Determinations, and other zone may request permission from the
Captain of Port Buffalo via channel 16, into, transiting through, or remaining in
actions by DoD officials under this part. the safety zone without permission of
As used in this part, and at DoD’s VHF–FM. Vessels and persons granted
permission to enter the safety zone shall the Captain of the Port Los Angeles-
discretion, ‘‘DoD’’ may include, but is Long Beach or a designated
not limited to, Military Departments. obey the directions of the Captain of the
Port Buffalo or a designated representative.
Dated: June 14, 2021. representative. While within a safety DATES: This rule is effective without
Patricia L. Toppings, zone, all vessels shall operate at the actual notice from June 17, 2021,
OSD Federal Register Liaison, Department of minimum speed necessary to maintain a through 11:59 p.m. on June 21, 2021.
Defense. safe course. For the purposes of enforcement, actual
[FR Doc. 2021–12815 Filed 6–16–21; 8:45 am] This notification of enforcement is notice will be from 12:01 a.m. on June
BILLING CODE 5001–06–P issued under authority of 33 CFR 11, 2021, until June 17, 2021.

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32194 Federal Register / Vol. 86, No.

115 / Thursday, June 17, 2021 / Rules and Regulations

malpractice claims of members of the

and future medical expenses. Also

Total Immediate Payments $500,000 $500,000 $500,000

~ Survivor Annuity paid to the

(a) (b) (c) (d)

(a) (b) (c) (d)

VA Disability A tax-free monetary

Total Monthly VA Disability

(a) (b) (c) (d)

7 years younger, but both live until age 87. COMPENSATION/resources_comp01.asp#BM05.

be disclosed to the claimant. (a) In general. Non-economic damages

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